Dolan v. City of Tigard, 512 U.S. 374; 114 S. Ct. 2309; 129 L. Ed. 304 (1994)

Dolan v. City of Tigard, 512 U.S. 374; 114 S. Ct. 2309; 129 L. Ed. 304 (1994)

Facts—The city of Tigard, Oregon, conditioned its approval of a building permit to expand a plumbing and electric supply store on Dolan’s willingness to give land adjoining a creek to the city for a public greenway and for the construction of a bicycle path. The Land Use Board of Appeals, the Oregon Court of Appeals, and the Oregon Supreme Court all upheld these conditions.

Question—Do these conditions violate the takings clause of the Fifth Amendment as applied to the states by the Fourteenth?


ReasonsC.J. Rehnquist (5–4). The takings clause prohibits the taking of private property without just compensation. Requiring public access denies an individual a critical element of property rights, namely, the right to exclude others. Court decisions have long recognized the authority of states and localities to engage in land-use planning. Previous cases, however, have involved legislative classifications of “entire areas of the city” and did not require those being regulated to give their land to the government. At issue is whether there is an “essential nexus” between a legitimate state interest and the condition it imposes. In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the Court found such a nexus to be lacking. Here there is a connection between the city’s desire to control flooding and its restriction on Dolan, but the Court must still examine “whether the degree of the exactions demanded by the city’s permit conditions bears the required relationship to the projected impact of petitioner’s proposed development.” State cases have developed a number of tests to classify this relationship. After reviewing them, Rehnquist settled on a requirement that there be a “rough proportionality” between state objectives and state actions. Keeping an open flood plain is related to increases in potential water run-off from new construction, but the state gives no reason that a public greenway can better accomplish this objective than a private one, which would preserve the owner’s right to exclude others. Similarly, the city showed minimal relationship between its objectives and the establishment of a bicycle path.

J. Stevens, dissenting, agreed that a state may not attach “arbitrary conditions” to building permits, but he denied that past decisions mandated “rough proportionality,” especially in cases involving the regulation of businesses. Moreover, “The Court’s narrow focus on one strand in the property owner’s bundle of rights is particularly misguided in a case involving the development of commercial property.” State regulations of such businesses should bear “a strong presumption of constitutional validity.” The Court should not abandon this standard, especially in cases, like this, where the landowner is given a benefit. The Court is unnecessarily resurrecting “the doctrine of substantive due process.”

J. Souter, dissenting, also denied the relevance of the Nollan precedent in a case involving commercial development.

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