Dolan
owned a plumbing supply store in Tigard.She applied for a permit to redevelop her property,
build a larger store, and pave a gravel parking lot.The new store would be consistent
with local building code and zoning regulations.
Local
ordinances required 15% of any lot to be dedicated to open space and
landscaping.
The
City Planning Commission granted Dolan a permit, on the condition that she
dedicate an additional 10% of the property for improving the storm
drainage system and add a pedestrian/bicycle pathway to maintain green
space and give storm water a place to soak into the ground.
This
type of regulatory blackmail is known as an exaction.
Dolan
asked for a variance, but was denied.
The
Commission argued that the storm drainage requirement was reasonably
related to Dolan's requested permit, since the permit would reduce
drainage on the land and could lead to flooding from runoff.
In
Nollan v. California Coastal Commission (483 U.S. 825 (1987)) it was held that any exactions
had to be related to the proposed development.
How
related they had to be was a point of contention.Some courts had held that there
needed to be a "reasonable relationship", while other courts
had held that there must be an "essential nexus" between the
proposed development and a legitimate State interest.
Dolan
appealed to the Land Use Board of Appeals (LUBA), arguing that the exaction was not sufficiently related to the proposed
development.The LUBA denied
Dolan's appeal.Dolan
appealed.
The
LUBA felt that the impacts of the proposed development were supported by
substantial evidence, and there was a reasonable relationship between the
proposed development and the exaction.
The
Oregon Appellate Court affirmed the LUBA.Dolan appealed.
The
Oregon Supreme Court affirmed.Dolan appealed.
The
Oregon Supreme Court found that an exaction is reasonably related to an impact if the exaction serves the same purpose that a denial of the
permit would serve.
The
US Supreme Court reversed.
The
US Supreme Court noted that different States had required different
levels of closeness between the exaction and the proposed development, although all required some
"reasonable relationship."
The
US Supreme Court found that it was reasonable for the Commission to
require an exaction related to
flood control.However, this
was already contained in the requirement to maintain 15% of the land as
open space.
In
addition, the city didn't need to take title to the property, they could
have just restricted the land's use, which would have accomplished the
same goal but would have been more proportional.
The
Court found that the requirement that the open space be used as a public
greenway, with an easement for
pedestrians to walk across the property was not sufficiently related to
the legitimate flood control interest to maintain an "essential
nexus."
If
Dolan's redevelopment had encroached on a public greenway, then the city
could have required an easement
to make up for it.
The
Court proposed a "rough proportionality" test between the
exaction and the proposed development.
