Chapter § 15.9

• Jurisdiction: Oregon

§ 15.9 EXACTIONS

An exaction occurs when the government requires, as a condition of development, that a property owner contribute something, such as the dedication of land for a public purpose. Oregon takings claims based on exactions benefit from comparison to federal takings jurisprudence. Under the Fifth Amendment to the United States Constitution, an exaction constitutes a taking when the government grants a development right but requires a property owner to undertake actions, such as the dedication of public roadways, that lack an "essential nexus" to the impact of the proposed development and that do not satisfy the "rough proportionality" requirement—the government "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." Dolan v. City of Tigard, 512 US 374, 383, 391, 114 S Ct 2309, 129 L Ed 2d 304 (1994). See Nollan v. California Coastal Commission, 483 US 825, 834-37, 107 S Ct 3141, 97 L Ed 2d 677 (1987) ("the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was"). For takings claims based on development conditions requiring dedications of land, the Nollan and Dolan tests are well-settled law. Under Article I, section 18, of the Oregon Constitution, the Oregon courts have not developed an analysis distinct from the Nollan/Dolan tests when considering development conditions that require dedications of land. See, e.g., Brown v. City of Medford, 251 Or App 42, 283 P3d 367 (2012) (applying the Nollan/Dolan tests to a dedication requirement without undertaking a distinct Article I, section 18, analysis).

The Oregon Supreme Court has, however, applied an independent Article I, section 18, analysis to exactions that do not involve the dedication of land. In West Linn Corp. Park, L.L.C., 349 Or at 91-94, the court...