City of Tigard developed a Community Development Code (CDC) which required property owners to comply with a 15% open space requirement.
The city also adopted a plan for a pedestrian/bicycle pathway intended to encourage alternatives to automobile transportation.
The city also adopted a Master Drainage Plan which suggested a series of improvements to the Fanno Creek Basin to combat flooding problems.
Dolan wanted to expand her existing plumbing supply store and build a concrete parking lot. Her land was next to Fanno Creek, and part of her land was in the 100-year floodplain.
She applied to the city for a permit to redevelop the site.
The city granted the permit conditionally. To get the permit, she had to…
Dedicate the portion of her land lying within the 100-year floodplain to the city for improvement of a storm drainage system.
Dedicate an additionally 15-foot strip of land adjacent to the floodplain for a pedestrian/bicycle pathway.
Dolan resisted these conditions and appealed.
Procedural History
Lower courts found for city, no uncompensated taking.
When may a city put dedication conditions on the giving of a building permit?
Holding/Rule
A city may put dedication conditions on the giving of a building permit when…
An "essential nexus" exists between the legitimate state interests and the permit condition exacted by the city. AND
There is a "rough proportionality" between the required dedication and the impact of the proposed development.
Reasoning
There is no doubt that if the city simply required Dolan to give up the land and did not condition the permit upon the exaction, it would be a taking.
Governments are allowed to engage in land use planning; a land use regulation does not effect a taking if it substantially advances legitimate state interests and does not deny an owner economically viable use of his land.
However, the gov't may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the gov't where the property sought has little or no relationship to the benefit.
In evaluating the claim, must determine…
Whether the essential nexus exists between the legitimate state interest and the permit condition exacted by the city.
The prevention of flooding along Fanno Creek and the reduction of traffic congestion qualify as the type of legitimate public purposes the Court has upheld.
A nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's 100-year floodplain.
The same may be said for the city's attempt to reduce traffic congestion by providing for alternative means of transportation. In theory, a pathway provides a useful alternative means.
The required degree of connection between the exactions and the projected impact of the proposed development.
Some states allow very generalized statements as to the necessary connection between the required dedication and the proposed development.
This is too lax.
Some states require a very exacting correspondence - "specific and uniquely attributable test."
This is too harsh.
We adopt the "rough proportionality" test.
The city must show a reasonable relationship/rough proportionality between the required dedication and the impact of the proposed development.
Here, building a parking lot will increase the quantity and rate of storm-water flow from the property.
Thus, keeping the floodplain free from development would likely confine the pressures on Fanno Creek created by the new development.
However, this was not enough for the city; the city wanted the land for itself.
The city has not stated why a public greenway as opposed to a private greenway was required in the interest of flood control.
It makes a difference to the landowner; she no longer has the right to exclude if she has to give up the land.
The new building will probably increase traffic.
However, the city has failed to show any evidence that the additional number of vehicles trips generated by the new development reasonably relate to the city's requirement for a dedication of the pathway.
The findings that the bicycle pathway could offset some of the traffic demand is a far cry from a finding that the pathway will or is likely to offset some of the demand.
No precise mathematical calculation is required, but the city must make some effort to quantify its findings in support of the dedication.
Dissent
The city had the right to completely deny her application. Instead, they gave her a choice.
Limitations on the right to exclude others undoubtedly constitutes a significant infringement upon property ownership; however, restrictions on that right do not along constitute a taking.
Dolan has offered no evidence that her burden of compliance has any impact on the value or profitability of her planned development.
The rough proportionality test is inappropriate.
The correct inquiry should concentrate on whether the required nexus is present and look to whether the city has other motives beyond land use regulation.
Since Dolan wants people to come to her store, it seems likely that potential customers using the floodplain are more valuable than a useless parcel of vacant land.
The rejection of the pathway condition is nothing but a play on words.
Anything stated at this point is, of course, going to be a mere estimate.
There should be a presumption of validity for conditions imposed on a land-use permit.
