Chapter §15.9 EXACTIONS

• 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 are not "roughly proportional" to the impact. Dolan v. City of Tigard, 512 US 374, 383, 391, 114 S Ct 2309, 129 L Ed2d 304 (1994); see Nollan v. California Coastal Comm'n, 483 US 825, 834-37, 107 S Ct 3141, 97 L Ed2d 677 (1987). For takings claims based on development conditions requiring dedications of land, the Nollan and Dolan tests are well-settled law. But it is uncertain whether the Nolan and Dolan tests apply to other kinds of exactions from developers—such as requirements to construct off-site improvements or pay money. See St. Johns River Water Mgmt. Dist. v. Koontz, 77 So3d 1220, 1228-31 (Fla 2011), cert granted, 133 S Ct 420 (2012) (the Nollan/Dolan exactions test did not apply to an off-site wetlands mitigation condition).

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 W. Linn Corporate Park, L.L.C. v. City of W. Linn, 349 Or 58, 93-94, 240 P3d 29 (2010), the court held that a...