FLORENCE DOLAN PETITIONER v CITY OF TIGARD No 93 518 SUPREME COURT OF THE UNITED STATES 512 U S 374 114 S Ct 2309 129 L Ed 2d 304 1994 U S LEXIS 4826 62 U S L W 4576 38 ERC BNA 1769 94 Cal Daily Op Service 4747 94 Daily Journal DAR 8803 24 ELR 21083 8 Fla L Weekly Fed S 331 March 23 1994 Argued June 24 1994 Decided PRIOR HISTORY ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OREGON DISPOSITION 317 Ore 110 854 P 2d 437 reversed and remanded View References Turn Off Lawyers Edition Display DECISION City held not to have shown rough proportionality required under Fifth Amendment s takings clause to condition building permit s approval on dedication of portions of lot to city for greenway and pedestrian bicycle pathway SUMMARY The owner of a city lot in Oregon on which she operated a retail store applied to the city for a building permit for a bigger store a paved and expanded parking area and an additional structure for complementary businesses The city s planning commission pursuant to the city s community development code granted the application subject to two conditions that the owner dedicate to the city 1 as a greenway the portion of her lot within the 100 year floodplain of a creek which flowed through one corner and along one boundary of the lot and 2 as a pedestrian bicycle pathway an additional 15 foot strip of land adjacent to the floodplain The owner requested a variance but the commission denied the request and made findings to the effect that 1 it was reasonable to assume that customers and employees of the future uses of the site could utilize a pedestrian bicycle pathway adjacent to the development for transportation and recreational needs 2 it was reasonable to expect that some users of the site s planned parking for bicycles would use the pedestrian bicycle pathway if it were constructed 3 creation of a convenient safe pedestrian bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on nearby streets and lessen the increase in traffic congestion and 4 based on an anticipated increase in stormwater flow the requirement of dedication of the floodplain was related to the plan to intensify development The commission s order was approved by the city council subject to a minor modification regarding surveying On appeal to a land use board of appeals the owner claimed that the dedication requirements were not related to the proposed development and therefore constituted an uncompensated taking of property in violation of the takings clause of the Federal Constitution s Fifth Amendment The board however rejecting the takings claim 1 assumed that the city s findings were supported by substantial evidence and 2 expressed the view that there was a reasonable relationship between a the proposed development and the requirement to dedicate land along the creek for a greenway and b the alleviation of the impacts of increased traffic and the facilitation of a pedestrian bicycle pathway as an alternative means of transportation The Oregon Court of Appeals in affirming rejected the owner s contention that the United States Supreme Court had abandoned the test of reasonable relationship in favor of a stricter test of essential nexus 113 Or App 162 832 P2d 853 The Oregon Supreme Court in affirming expressed the view that both permit conditions 1 had an essential nexus to the development of the proposed site and 2 therefore were reasonably related to the impact of the expansion of the owner s business 317 Or 110 854 P2d 437 On certiorari the United States Supreme Court reversed and remanded In an opinion by Rehnquist Ch J joined by O Connor Scalia Kennedy and Thomas JJ it was held that 1 in order to decide whether conditions requiring the dedication of land to a city which conditions are imposed by the city on its approval of a lot owner s building permit constitute an uncompensated taking in violation of the Fifth Amendment s takings clause a a court must first determine whether an essential nexus exists between legitimate state interests and the permit conditions and b if the court finds that a nexus exists then the court must determine whether the city has shown a rough proportionality between the exactions and the projected impact of the proposed development and 2 as to the case at hand even though an essential nexus existed between legitimate state interests and the two conditions in question the commission s findings did not satisfy the requirement or test of showing rough proportionality because a the city had never said why a public greenway as opposed to private one was required in the interest of flood control and b the city had not met its burden on demonstrating that the additional number of vehicle and bicycle trips generated by the development reasonably related to the pedestrian bicycle pathway condition Stevens J joined by Blackmun and Ginsburg JJ dissenting expressed the view that 1 the Supreme Court s test of rough proportionality a focused too narrowly on a property owner s right to exclude others b imposed a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan and c resurrected a rejected species of substantive due process analysis and 2 even under the Supreme Court s new test the defects found by the court in the city s case were at most nothing more than harmless error Souter J dissenting expressed the view that while the Supreme Court announced a test as to the degree of connection required between governmental exaction of an interest in land and the adverse effects of development the court 1 did not apply that test to the facts of the case at hand which did not raise the question that the court addressed 2 improperly placed on the city the burden of producing evidence of relationship and 3 having thus assigned the burden of proof improperly concluded that the city lost LEXIS HEADNOTES Classified to U S Digest Lawyers Edition HN1 EMINENT DOMAIN 98 taking building permit conditions dedication of land Headnote 1A 1B 1C 1D 1E 1F 1G 1H 1I Even though an essential nexus exists between legitimate state interests and two conditions imposed by a city on its approval of a lot owner s building permit for a bigger retail store a paved and expanded parking area and an additional structure for complementary businesses which conditions require the owner to dedicate to the city 1 as a greenway the portion of her lot within the 100 year floodplain of a creek which flows through one corner
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