Last week, after we concluded the spring meeting of the ABA's Section on State and Local Government Law in Portland, Oregon (more about that in a subsequent post), we could not resist paying a brief visit to the neighboring City of Tigard.
Yes, that City of Tigard.
In the early 1990s, the city was home to John and Florence Dolan, who owned A-Boy Plumbing & Electrical Supply. They asked the city for a permit to expand their store and pave their parking lot. The city saw this as an opportunity to expand its network of bike paths, and conditioned its approvals on the Dolans "dedicating" (giving) the city land for a public "greenway" along the adjacent Fanno Creek, totaling approximately 10% of the parcel.
The entrance to the "greenway" from the street.
The Dolans objected, arguing that requiring them to donate land as a condition of land use entitlements was a taking, but the Oregon Land Use Appeals Board and the Oregon state courts predictably upheld the exaction, concluding there was an "essential nexus" between the dedication requirement and the Dolans' proposed new uses under Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987).
The U.S. Supreme Court reversed, and held that in addition to a "nexus" between the exaction and the proposed development, there must be "rough proportionality" as well. "No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development's impact."
Fanno Creek
Because the city had not made that determination, the exaction violated the Fifth Amendment.
Read the opinion at Dolan v. City of Tigard, 512 U.S. 687 (1994), and listen to the oral arguments here. The case was remanded, and the city on reconsideration in light of the Supreme Court opinion again imposed the exaction.
The Dolans sued in state court for compensation, and that case settled in 1998, nearly four years after the Supreme Court issued its opinion. The city agreed to pay Mrs. Dolan $1.4 million (Mr. Dolan passed away before the final resolution). As part of the settlement, the city also agreed to pay her attorneys fees, and install a commemorative plaque on the land she dedicated for the "greenway."
The greenway entrance and the commemorative plaque
Since that time the "Nollan/Dolan" essential nexus and rough proportionality standard has become a term of art to dirt lawyers and land use planners, shorthand for the requirements that must be followed when a local government attempts to condition land use approvals on the dedication of land or other property.
View to the street
We've gone on pilgrimages before to visit the sites of regulatory takings cases, but this one felt a bit different because the site is so modest. The area along the back side of the hardware store is not by itself noteworthy, and if you didn't realize the backstory of the plaque you would never know that this small slice of land was the inspiration for one of the more important Fifth Amendment opinions issued by the Court.
The creek, the store, and the greenway from the street bridge
