Introduction and decision.

AuthorWatters, Lawrence
PositionColloquium on Dolan: The Takings Clause Doctrine of the Supreme Court and the Federal Circuit
  1. Introduction II. Elements of the Case

    1. Mrs. Dolan's Property and the City of Tigard's Plan

    2. Decisions of the Land Use Board of Appeals

    3. Decision of the Oregon Court of Appeals

    4. Decision of the Oregon Supreme Court

    5. Petition for Certiorari to the U.S. Supreme Court

    6. Decision of the U.S. Supreme Court III. Where Did the Court Leave Taking Law?

  2. INTRODUCTION

    To fully understand the taking issue, some required reading is in order. Beyond the text of the Fifth Amendment to the U.S. Constitution,(1) one must study Greek mythology, especially the myth of Sisyphus.(2) This tale depicts human existence as an eternal struggle to roll a large rock up a hill, only to have it tumble down. Every day brings the same effort, with the same result.

    Similarly, the U.S. Supreme Court recently rolled the rock of the taking issue up the hill in Lucas v. South Carolina Coastal Council,(3) when it grappled with the problem of an apparent denial of all reasonable use of property as a result of restrictions on coastal development. The result was many opinions on the subject, but no definitive conclusion.(4)

    Just as scholars and practitioners were beginning to assimilate the result in Lucas, the Court announced it was going to roll the rock up the hill again. This time, in Dolan v. City of Tigard,(5) the subject was the government's authority to impose conditions on development. The eternal struggle resumed and is played out in the recent and equally significant decisions of the Federal Circuit,(6) which this colloquium will also address.

  3. ELEMENTS OF THE CASE

    1. Mrs. Dolan's Property and the City of Tigard's Plan

      In 1973, Oregon enacted a comprehensive land use planning program that required all cities and counties to adopt comprehensive land use plans consistent with statewide planning goals.(7) Local governments implemented the plans through land use regulations. In response, the city of Tigard, a community of 30,000 residents southwest of Portland, adopted a comprehensive land use plan codified as the Community Development Code (CDC).(8)

      The CDC requires property owners in Tigard's central business district to meet a fifteen percent open space and landscaping requirement, thus limiting total site coverage, including structures and paved parking, to eighty-five percent of the parcel.(9) In addition, after a transportation study identified business district traffic congestion as a particular problem, the city adopted a plan for a pedestrian/bicycle path to provide an alternative to automobile use.(10) To implement this plan, the CDC requires new development to dedicate land for the path.(11)

      The city also enacted a Master Drainage Plan,(12) which noted that Fanno Creek occasionally floods areas near Florence Dolan's property.(13) In particular, the creek's year-round flow renders the area within the "100-year floodplain virtually unusable for commercial development."(14) The plan further determined that the increase in impervious surfaces related to new development would exacerbate the flooding problems.(15) To prevent this, the plan recommended a series of improvements to the Fanno Creek Basin, including: 1) channel excavation adjacent to Dolan's property;(16) 2) exclusion of structures from the floodplain;(17) and 3) preservation of the floodplain as a greenway to reduce flood damage to structures.(18) The plan determined that the cost of these improvements should be borne by sponsors of new development, with their share based on direct and indirect benefits.(19) As a result, property owners along the creek were required to pay more, because they received a direct benefit.(20)

      Dolan's property is a 1.67-acre parcel in the business district of the city.(21) A 9,700 square foot electrical and plumbing supply store, adjoined by a gravel parking lot, is located on the eastern edge of the property.(22) As shown in Figure 1, Fanno Creek flows through the south-western corner of the property and along its western boundary.(23)

      Dolan applied to the city for site development approval to replace the existing structure with a 17,600 square foot retail sales building to be constructed on the property's western side.(24) The new development would double the size of the current store and involve paving a thirty-nine space parking lot.(25) Dolan would raze the existing store on the opposite side of the parcel in sections as the new construction progressed.(26) In a subsequent phase of the project, she proposed to build an additional structure on the parcel's northeast side for other commercial use and more parking.(27) The proposed development is consistent with the city's zoning for the business district.(28)

      The city planning commission approved construction of the building, but imposed conditions requiring Dolan to remove a roof sign and dedicate land for a greenway and a pedestrian/bicycle path.(29) Specifically, she was required to dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and an additional fifteen foot strip of land adjacent to the floodplain for the pedestrian/bicycle path.(30) This dedication encompassed about 7,000 square feet or roughly ten percent of her property.(31) However, the dedicated portion of her property would apply to satisfy the fifteen percent open space and landscaping requirement imposed by the CDC.(32)

    2. Decisions of the Land Use Board of Appeals

      Dolan appealed the planning commission's decision to the Oregon Land Use Board of Appeals (LUBA), challenging the city's conditions. LUBA refused to consider the property owner's claim that the dedication conditions for approval resulted in a taking under the state and federal constitutions.(33) LUBA held the matter was not ripe for review, because Dolan had not sought relief through the variance process provided in the city's development code.(34) LUBA also rejected Dolan's claim that requiring removal of her roof sign was unreasonable, thus denying her due process, because the allegation was not supported by any legal analysis.(35)

      Dolan then submitted a new site development application for the building to the city.(36) This application included requests for variances from the CDC requirements.(37) A variance is granted only when the applicant shows that due to special circumstances related to the property in question, literal application of the zoning ordinance causes "an undue or unnecessary hardship."(38) However, Dolan offered no alternative mitigation measures to offset the impact of her development as provided for under the CDC.(39) She merely argued the development "would not conflict with the comprehensive plan."(40) The planning commission again approved the site development, but denied the variances.(41) The city council subsequently approved the commission's final order.(42)

      The city's decision thus included two conditions in its twenty-seven page final order with findings and conclusions:

      1. The applicant shall dedicate to the City as greenway all portions of the

      site that fall within the existing 100-year floodplain [of Fanno Creek] (i.e., all

      portions of the property below elevation 150.0) and all property 15 feet above

      (to the east of) the 150.0 foot floodplain boundary. The building shall be

      designed so as not to intrude into the greenway area * * * [sic]

      15. The existing roof sign shall be permanently removed from the subject

      property within 45 days of the issuance of the Occupancy Permit for the new

      building.(43)

      Dolan again appealed the conditions to LUBA, alleging the required dedications constituted an unlawful taking in violation of the just compensation clause of the state and federal constitutions.(44) However, she did not argue that creating a greenway in the floodplain for storm water management purposes and providing a pathway for alternative means of transportation were not "legitimate public purposes."(45) In addition, she chose not to contest "the sufficiency of the `nexus' between these legitimate public purposes and the condition imposed requiring dedication of portions of [her] property for the greenway and pedestrian/bicycle pathway."(46) She contended instead that the relation between the impact of her proposed development and the exactions imposed was inadequate to justify the dedication of her property without compensation.(47)

      Therefore, Dolan's main claim was that the dedication requirements were not actually related to the proposed development.(48) However, she did not challenge the adequacy of the city's findings or their evidentiary support in the record.(49) LUBA, therefore, accepted the city's findings of fact concerning the impact of the proposed development and the need for storm water management and alternative means of transportation as valid.(50) The only issue was whether the "facts [were] legally sufficient to establish the requisite relationship between the impacts of the proposed development and the exaction imposed."(51)

      LUBA concluded the nexus requirement of Nollan v...

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