512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304
Petitioner Florence Dolan owns a plumbing and electric supply store located on a 1.67-acre parcel of land in the business district of the city of Tigard, Oregon.1 The store is on a parcel that includes a 9,700-square-foot building, and Fanno Creek flows through the southwestern corner of the lot within the 100-year floodplain.2
In the early 1970's, the city developed a comprehensive plan for managing surface water drainage in the Fanno Basin serving the area where the property is located.3 The comprehensive plan also contained provisions for a pedestrian and bicycle pathway system throughout the city, one of which was to follow along Fanno Creek.4
In 1988, petitioner applied for a permit to expand her store and pave the parking lot.5 The city planning commission granted the permit but required petitioner to dedicate a portion of her property for the construction of a public greenway along Fanno Creek and an additional 15-foot strip of land adjacent to the greenway for a pedestrian and bicycle pathway.6 The dedication required encompasses approximately 7,000 square feet, or roughly 10% of the property.7
Petitioner requested a variance from the city's dedication requirements. The planning commission denied the variance, and the city council affirmed the denial.8 Petitioner then filed suit in Oregon state court claiming an uncompensated taking.9
The Oregon trial court upheld the city's requirements. The Oregon Court of Appeals affirmed, as did the Oregon Supreme Court.10 The United States Supreme Court granted certiorari.11 The question presented was what standard of review applies to a claim that a city's exaction of a dedication of private property as a condition of a building permit constitutes an uncompensated taking of property in violation of the Fifth Amendment.12
Whether the city's dedication requirements satisfy the essential nexus test to the impacts of the proposed development?13
A permit condition requiring dedication of private property must have an essential nexus to a legitimate state interest the condition is intended to serve.14
Yes. The prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as legitimate public purposes.15 A nexus exists between preventing flooding and limiting development within the creek's 100-year floodplain because the proposed expansion will increase impervious surface and stormwater runoff.16 A nexus likewise exists between reducing traffic congestion and providing a pedestrian/bicycle pathway as an alternative means of transportation.17
The essential nexus requirement is satisfied.18
Whether the city's dedication requirements are roughly proportional to the projected impacts of the proposed development?19
Even where an essential nexus exists, the city must make some sort of individualized determination. The determination must show that the required dedication is related both in nature and extent to the impact of the proposed development under the rough proportionality test.20
No. The city's findings that the pathway could offset some of the traffic demand are insufficient because they do not quantify the relationship to the 435 additional trips per day generated by the development.21 The city failed to show why a public greenway rather than a private one is required for flood control.22
The dedication requirements are not roughly proportional to the projected impacts and therefore constitute an uncompensated taking in violation of the Fifth Amendment.23
Related opinions on this issue
Joined by Justice Blackmun
Justice Stevens dissented on the ground that the new rough proportionality test is unnecessary and unwise.24 He argued that the burden should remain on the property owner to show that a concededly germane condition is so grossly disproportionate that it manifests motives other than land use regulation.25 Stevens further contended that the city's conditions are a legitimate exercise of police power to mitigate the adverse effects of development.26
He emphasized that the analysis should focus on the entire parcel and the benefits the owner receives from the permit rather than isolating the right to exclude.27 In his view the heightened scrutiny imposed by the majority is unjustified given the commercial nature of the property.28
Justice Souter dissented on the ground that the case does not raise a question of degree beyond the nexus analysis already required by Nollan.29 He argued that the city's findings satisfy the required relationship because the comprehensive plan relied on studies linking bicycle paths to reduced traffic congestion and because the floodplain dedication is reasonably related to flood control.30 Souter also contended that the majority improperly placed the burden of producing evidence on the city rather than presuming the constitutionality of the police-power action.31
Whether the Takings Clause requires the city to make an individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development?32
The Takings Clause requires the city to make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.33
Yes. The city failed to make such an individualized determination because its findings were tentative and conclusory rather than quantified.34 The commission stated only that the pathway could offset some traffic demand and that the floodplain dedication was related to intensified development without demonstrating the required relationship in nature and extent.35
The Takings Clause requires such an individualized determination, which the city did not make.36