John T DOLAN and Florence Dolan Petitioners v CITY OF TIGARD Respondent CA No A73769 COURT OF APPEALS OF OREGON 113 Ore App 162 832 P 2d 853 1992 Ore App LEXIS 1023 April 13 1992 Argued and submitted May 20 1992 May 20 1992 FILED SUBSEQUENT HISTORY 1 Reconsideration Denied July 29 1992 Petition for Review Allowed October 27 1992 314 Or 573 PRIOR HISTORY Judicial Review from Land Use Board of Appeals LUBA No 91 161 DISPOSITION Affirmed COUNSEL David B Smith Tigard argued the cause and filed the brief for petitioners James M Coleman Portland argued the cause for respondent With him on the brief was O Donnell Ramis Crew Corrigan Portland JUDGES Richardson Presiding Judge and Deits and Durham Judges OPINIONBY RICHARDSON OPINION 164 853 Petitioners applied to the City of Tigard for a permit to tear down the existing retail building on their property to construct a larger one and to intensify the commercial use of the property The city granted the application subject to the conditions specified in applicable zoning ordinance provisions that petitioners dedicate part of the property for a pedestrian and bicycle pathway and for greenway and storm water drainage purposes Subsequently petitioners sought a variance from the provisions prescribing the conditions which the city denied Petitioners appealed to LUBA contending that the dedication requirements constitute uncompensated takings of the property in violation 2 of Article I section 18 of the Oregon Constitution and the Fifth Amendment to the federal constitution made applicable to the city by the Fourteenth Amendment LUBA rejected the contentions and affirmed the city s decision Petitioners seek review and we affirm In Nollan v California Coastal Comm n 483 U S 825 107 S Ct 3141 97 L Ed 2d 677 1987 the Supreme Court developed what appears to be a three level inquiry for determining when a condition on development constitutes a taking The first question is whether there is a legitimate governmental interest that the regulation that establishes the conditions is designed to serve The second is whether the regulation and the condition substantially advance that interest See Agins v Tiburon 447 U S 255 100 S Ct 2138 65 L Ed 2d 106 1980 In Dept of Trans v Lundberg 312 Or 568 576 77 825 P2d 641 1992 the Oregon Supreme Court explained 854 the second part of the Nollan inquiry The Supreme Court of the United States held that 3 this type of condition amounts to an unconstitutional taking unless there is an essential nexus between the land use regulation that the permit condition is intended to implement and the permit condition The Court described this requirement A permit condition that serves the same legitimate governmental purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking The evident constitutional propriety disappears however if the condition substituted for the prohibition 165 utterly fails to further the end advanced as the justification for the prohibition In short unless the permit condition serves the same governmental purpose as the development ban the building restriction is not a valid regulation of land use but an out and out plan of extortion Nollan v California Coastal Comm n supra 483 U S at 836 37 citing authority The Court concluded that the permit condition did not serve any of the purposes relied on to justify its imposition The lack of nexus between the permit condition and 4 the purpose of the building restriction converted that purpose to the obtaining of an easement to serve some valid governmental purpose but without payment of compensation i e to an unconstitutional taking Id at 837 Brackets in original The third inquiry is concerned with the application of the conditions to particular developments and poses the question of what relationship must exist between the impacts or public needs that result from a development and the conditions that may be attached to its approval to ameliorate or respond to those impacts and needs In land use parlance this is sometimes called the relationship between impacts and exactions The Court said in Nollan The Commission claims that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the Nollans new house creates or to which it contributes We can accept for purposes of discussion the Commission s proposed test as to how close a fit between the condition and the burden is required because we find that this case sic does not meet 5 even the most untailored standards 483 U S at 838 Emphasis supplied The Court proceeded to hold that requiring the Nollans to grant a public beach access easement did not have the necessary relationship to the construction of the house for which they sought a permit Stripped to its essentials the Court s reasoning is that the house would not interfere with access in the way that the Commission thought and therefore the easement could not be required to promote access at least without payment of compensation to the Nollans Although petitioners brief in this court differs significantly from the argument that they made to LUBA the 166 principal issues here as there are what the proper test is for ascertaining whether a condition survives constitutional scrutiny under the third question in Nollan and whether the conditions here pass that test The city argues and LUBA concluded that the reasonable relationship test is the correct one under both constitutions LUBA explained the substance of that test The reasonable relationship standard is somewhere between the more extreme standards 6 followed by courts in a few jurisdictions which require that the need for a development exaction be specifically and uniquely attributable to the proposed development or that a development exaction merely have some relationship to the proposed development Parks v Watson 716 F2d 646 9th Cir 1983 Petitioners do not appear to dispute that that is the correct conclusion under the 855 Oregon Constitution and we agree with LUBA s conclusion and its analysis of the Article I section 18 issue See Hayes v City of Albany 7 Or App 277 490 P2d 1018 1971 O Keefe v City of West Linn 14 Or LUBA 284 1986 The reasonable relationship test has also been adopted as the correct standard under the Fifth Amendment by most courts that have addressed the question It was endorsed by the Ninth Circuit in Parks v Watson supra and that court in effect
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