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Dolan v. Tigard, City of

ELR Citation: 24 ELR 20151
Nos. No. SC S39393, 854 P.2d 437/317 Or. 110, (Or., 07/01/1993)

The court holds that the attachment to landowners' development permits of conditions that require landowners to dedicate portions of their property for public use is not a taking of property that violates the Fifth Amendment of the U.S. Constitution. A city granted the landowners' application for rebuilding and expanding an existing structure, but required that they dedicate the portion of their property lying within the 100-year floodplain for improvement of a stormwater drainage system and that they dedicate an additional 15-foot strip of land as a pedestrian/bicycle pathway. The court first holds that the city need not meet a standard higher than the "reasonable relationship" test in demonstrating that the requirements are related to the proposed development and, therefore, do not constitute a taking. The U.S. Supreme Court did not abandon the "reasonably related" test in favor of a more stringent, "essential nexus" test in Nollan v. California Coastal Commission, 17 ELR 20918 (U.S. 1987). In retaining the "reasonably related" test, the Supreme Court indicated that to demonstrate a reasonable relation, it is essential to show a nexus between the development and the conditions in order for the requirements to advance substantially a legitimate state interest. The court holds that the requirements are reasonably related to the impact of the expanded development because they have an essential nexus to the development. The transportation needs that the building expansion will create and that the pathway will help to alleviate have an essential nexus to the development, and there is an essential nexus between the increased stormwater runoff that the development will cause and the required drainage system improvement.

A dissenting judge would hold that the conditions are impermissible because the lower court's findings do not establish any need for the exactions that is attributable to the development.

Counsel for Petitioners
David B. Smith
Oregonians In Action
P.O. Box 230637, Tigard OR 97281
(503) 620-0258

Counsel for Respondent
James M. Coleman
O'Donnell, Ramis, Crew & Corrigan
Ballow & Wright Bldg., 1727 NW Hoyt St., Portland OR 97209
(503) 222-4402