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
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. 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 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 pedestrian 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.
