Dolan v. Tigard

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Dolan v. Tigard
114 S. Ct. 2309 1994
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• Florence Dolan is an elderly widow who owns a
  1.67 acre commercial lot on Main Street

• On that lot is A-Boy Plumbing, a 9,700 square
  foot retail, electric and plumbing supply store.

• The lot is zoned Commercial Business District
  and is in the "Action Area" overlay zone (CBD-AA)

• On the western lot boundary is a small stream,
  known as Fanno Creek, which lies within the
  100-year flood plain

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• 1991, Mrs. Dolan and her to be late husband
  John
• applied to the City of Tigard for approval to

• tear down the existing 9,700 square foot
  building,

• replace it with a 17,600 square foot building,
  and

• a 20,200 square foot parking area for 39 cars.

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City said Sure! if . . . .

• Dolan dedicated about 7,000 square feet (10)
• lying within the 100-year floodplain along Fanno
• Creek, for a greenway,

• Dolan dedicated a 15-foot strip adjacent to the
• floodplain for a pedestrian and bicycle pathway.

Dolan applied for a variance from the conditions.
Lets take a look at the property.
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After a hearing, City found

• The dedications did not constitute a taking

• The dedication and pathway construction were
  reasonably related to the applicants' request to
  intensify the development of the site

• The City found it reasonable to assume that
  customers and employees of the expanded business
  would use the pedestrian bicycle pathway for
  transportation and recreation needs

• The City also found that it was reasonable to
  expect that some of the users of the bicycle
  parking would use the pathway adjacent to Fanno
  Creek.

• NOTE The Dolan site plan placed a bicycle rack
  in front
• of the building for customers and employees.

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• The City also noted that the proposed expanded
  use of the property would generate more traffic,
  increasing congestion on nearby streets.

• The pathway, the City found, would create
  convenient safe pedestrian/bicycle access to the
  site as an alternative means of transportation
  and offset some of the roadway traffic demand.

• Because of increased impervious surfaces, there
  would be
• increased storm runoff and thus dedication of
  floodway was
• reasonably related

Dolans appealed to
The Tigard City Council
Oregon Land Use Board of Appeals
Oregon Court of Appeals
Oregon Supreme Court
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And to the U.S. Supreme Court
NOTE There would be relatively minor cost to
the Dolans associated with the conditions
(constructing the bike path).

• The Court found that there was an essential
  nexus,
• but . . .

• The second part of our analysis requires us to
• determine . .

• whether the degree of the exactions demanded by
  the city's permit conditions . . .

• bear the required relationship to the projected
  impact of petitioner's proposed development.

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• We think a term such as rough proportionality
  best encapsulates what we hold to be the
  requirement of the Fifth Amendment.

• No precise mathematical calculation is
  required, but . . .

• the city must make some sort of individualized
• determination that the required
  dedication is
• related both in nature and extent to the
• impact of the proposed development.

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5 JUSTICE STEVENS' dissent takes us to task for
placing the burden on the city to justify the
required dedication.
He is correct in arguing that
in evaluating most generally applicable zoning
regulations, the burden properly rests on the
party challenging the regulation to prove that it
constitutes an arbitrary regulation of property
rights.
Here, by contrast, the city made an adjudicative
decision to condition petitioner's application
for a building permit on an individual parcel.

In this situation, the
burden properly rests on the city.
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So . . .

• Must have an essential nexus
• Conditions must be roughly proportional to
  impact, and
• The burden to justify the condition rests on the
  government.