FLORENCE DOLAN, PETITIONER v. CITY OF TIGARD

 

No. 93-518

 

SUPREME COURT OF THE UNITED STATES

 

512 U.S. 374; 114 S. Ct. 2309; 1994 U.S. LEXIS 4826; 129 L. Ed. 2d 304; 62

U.S.L.W. 4576; 38 ERC (BNA) 1769; 94 Cal. Daily Op. Service 4747; 94 Daily

Journal DAR 8803; 24 ELR 21083; 8 Fla. Law W. Fed. S 331

 

 

 

March 23, 1994, Argued

June 24, 1994, Decided

 

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OREGON.

 

DISPOSITION: 317 Ore. 110, 854 P. 2d 437, reversed and remanded.

 

SYLLABUS:

 

The City Planning Commission of respondent city conditioned approval of

petitioner Dolan's application to expand her store and pave her parking lot

upon her compliance with dedication of land (1) for a public greenway along

Fanno Creek to minimize flooding that would be exacerbated by the increases

in impervious surfaces associated with her development and (2) for a

pedestrian/bicycle pathway intended to relieve traffic congestion in the

city's Central Business District. She appealed the commission's denial of

her request for variances from these standards to the Land Use Board of

Appeals (LUBA), alleging that the land dedication requirements were not

[***2] related to the proposed development and therefore constituted an

uncompensated taking of her property under the Fifth Amendment. LUBA found

a reasonable relationship between (1) the development and the requirement

to dedicate land for a greenway, since the larger building and paved lot

would increase the impervious surfaces and thus the runoff into the creek,

and (2) alleviating the impact of increased traffic from the development

and facilitating the provision of a pathway as an alternative means of

transportation. Both the Oregon Court of Appeals and the Oregon Supreme

Court affirmed.

 

Held: The city's dedication requirements constitute an uncompensated taking

of property. Pp. 383-396.

 

(a) Under the well-settled doctrine of "unconstitutional conditions," the

government may not require a person to give up a constitutional right in

exchange for a discretionary benefit conferred by the government where the

property sought has little or no relationship to the benefit. In evaluating

Dolan's claim, it must be determined whether an "essential nexus" exists

between a legitimate state interest and the permit condition. Nollan v.

California Coastal Comm'n, 483 U.S. 825, [***3] 837, 97 L. Ed. 2d 677,

107 S. Ct. 3141. If one does, then it must be decided whether the degree of

the exactions demanded by the permit conditions bears the required

relationship to the projected impact of the proposed development. 483 U.S.

at 834. Pp. 383-386.

 

(b) Preventing flooding along Fanno Creek and reducing traffic congestion

in the district are legitimate public purposes; and a nexus exists between

the first purpose and limiting development within the creek's floodplain

and between the second purpose and providing for alternative means of

transportation. Pp. 386-388.

 

(c) In deciding the second question -- whether the city's findings are

constitutionally sufficient to justify the conditions imposed on Dolan's

permit -- the necessary connection required by the Fifth Amendment is

"rough proportionality." 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. This is essentially the "reasonable relationship"

test adopted by the majority of the state courts. Pp. 388-391.

 

(d) The findings upon which the [***4] city relies do not show the

required reasonable relationship between the floodplain easement and

Dolan's proposed building. The Community Development Code already required

that Dolan leave 15% of her property as open space, and the undeveloped

floodplain would have nearly satisfied that requirement. However, the city

has never said why a public, as opposed to a private, greenway is required

in the interest of flood control. The difference to Dolan is the loss of

her ability to exclude others from her property, yet the city has not

attempted to make any individualized determination to support this part of

its request. The city has also not met its burden of demonstrating that the

additional number of vehicle and bicycle trips generated by Dolan's

development reasonably relates to the city's requirement for a dedication

of the pathway easement. The city must quantify its finding beyond a

conclusory statement that the dedication could offset some of the traffic

demand generated by the development. Pp. 392-396.

 

COUNSEL: David B. Smith argued the cause and filed briefs for petitioner.

 

Timothy V. Ramis argued the cause for respondent. With him on the brief

were James M. Coleman and Richard [***5] J. Lazarus.

 

Deputy Solicitor General Kneedler argued the cause for the United States as

amicus curiae urging affirmance. With him on the brief were Solicitor

General Days, Acting Assistant Attorney General Schiffer, James E.

Brookshire, and Martin W. Matzen. *

 

* Briefs of amici curiae urging reversal were filed for the American Farm

Bureau Federation et al. by James D. Holzhauer, Timothy S. Bishop, John J.

Rademacher, and Richard L. Krause; for Defenders of Property Rights et al.

by Nancie G. Marzulla; for the Georgia Public Policy Foundation et al. by

G. Stephen Parker; for the Institute for Justice by William H. Mellor III,

Clint Bolick, and Richard A. Epstein; for the National Association of Home

Builders et al. by William H. Ethier, Mary DiCrescenzo, and Stephanie

McEvily; for the National Association of Realtors et al. by Richard M.

Stephens; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L.

Rivett, James S. Burling, Deborah J. La Fetra, and John M. Groen; for the

Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar;

for Jon A. Chandler, pro se; and for Terence Wellner et al. by Daniel G.

Marsh.

 

Briefs of amici curiae urging affirmance were filed for the State of New

Jersey et al. by Deborah T. Poritz, Attorney General of New Jersey, Jack M.

Sabatino and Mary Carol Jacobson, Assistant Attorneys General, and Rachel

J. Horowitz, Deputy Attorney General, and by the Attorneys General for

their respective jurisdictions as follows: Grant Woods of Arizona, Richard

Blumenthal of Connecticut, Robert A. Butterworth of Florida, Elizabeth

Barrett-Anderson of Guam, Robert A. Marks of Hawaii, Michael E. Carpenter

of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan,

Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Tom Udall of

New Mexico, G. Oliver Koppell of New York, Lee Fisher of Ohio, Jeffrey B.

Pine of Rhode Island, Charles W. Burson of Tennessee, Rosalie S. Ballentine

of the Virgin Islands, and Joseph B. Meyer of Wyoming; for the State of

Oregon by Theodore R. Kulongoski, Attorney General, Thomas A. Balmer,

Deputy Attorney General, Virginia L. Linder, Solicitor General, and Michael

D. Reynolds and John T. Bagg, Assistant Attorneys General; for Broward

County by John J. Copelan, Jr., and Anthony C. Musto; for the City of New

York by Paul A. Crotty, Leonard J. Koerner, and Linda H. Young; for the

American Federation of Labor and Congress of Industrial Organizations by

Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for the Association

of State Floodplan Managers by Michael J. Bean; for the Rails-to-Trails

Conservancy et al. by Andrea C. Ferster, Daniel L. Rabinowitz, and Glenn P.

Sugameli; for the National Association of Counties et al. by Richard Ruda,

Lee Fennell, and Barbara E. Etkind; for the National Audubon Society by

John D. Echeverria; and for 1000 Friends of Oregon et al. by H. Bissell

Carey III, Dwight H. Merriam, and Edward J. Sullivan.

 

Briefs of amici curiae were filed for the Mountain States Legal Foundation

et al. by William Perry Pendley; for the Northwest Legal Foundation by

Jeanette R. Burrage; and for Thomas H. Nelson, pro se, et al. [***6]

 

JUDGES: REHNQUIST, C. J., delivered the opinion of the Court, in which

O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a

dissenting opinion, in which BLACKMUN and GINSBURG, JJ., joined, post, p.

396. SOUTER, J., filed a dissenting opinion, post, p. 411.

 

OPINIONBY: REHNQUIST

 

OPINION: [*377] [**2312] CHIEF JUSTICE REHNQUIST delivered the opinion

of the Court.

 

Petitioner challenges the decision of the Oregon Supreme Court which held

that the city of Tigard could condition the approval of her building permit

on the dedication of a portion of her property for flood control and

traffic improvements. 317 Ore. 110, 854 P.2d 437 (1993). We granted

certiorari to resolve a question left open by our decision in Nollan v.

California Coastal Comm'n, 483 U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141

(1987), of what is the required degree of connection between the exactions

imposed by the city and the projected impacts of the proposed development.

 

[**2313] I

 

The State of Oregon enacted a comprehensive land use management program in

1973. Ore. Rev. Stat. ßß 197.005-197.860 (1991). The program required all

Oregon cities and counties to adopt new comprehensive [***7] land use

plans that were consistent with the statewide planning goals. ßß

197.175(1), 197.250. The plans are implemented by land use regulations

which are part of an integrated hierarchy of legally binding goals, plans,

and regulations. ßß 197.175, 197.175(2)(b). Pursuant to the State's

requirements, the city of Tigard, a community of some 30,000 residents on

the southwest edge of Portland, developed a comprehensive plan and codified

it in its Community Development Code (CDC). The CDC requires property

owners in the area zoned Central Business District to comply with a 15%

open space and landscaping requirement, which limits total site coverage,

including all structures and paved parking, to 85% of the parcel. CDC, ch.

18.66, App. to Pet. for Cert. G-16 to G-17. After the completion of a

transportation study that identified [*378] congestion in the Central

Business District as a particular problem, the city adopted a plan for a

pedestrian/bicycle pathway intended to encourage alternatives to automobile

transportation for short trips. The CDC requires that new development

facilitate this plan by dedicating land for pedestrian pathways where

provided for in the pedestrian/bicycle [***8] pathway plan. n1

 

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n1 CDC ß 18.86.040.A.1.b provides: "The development shall facilitate

pedestrian/bicycle circulation if the site is located on a street with

designated bikepaths or adjacent to a designated greenway/open space/park.

Specific items to be addressed [include]: (i) Provision of efficient,

convenient and continuous pedestrian and bicycle transit circulation

systems, linking developments by requiring dedication and construction of

pedestrian and bikepaths identified in the comprehensive plan. If direct

connections cannot be made, require that funds in the amount of the

construction cost be deposited into an account for the purpose of

constructing paths." App. to Brief for Respondent B-33 to B-34.

 

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The city also adopted a Master Drainage Plan (Drainage Plan). The Drainage

Plan noted that flooding occurred in several areas along Fanno Creek,

including areas near petitioner's property. Record, Doc. No. F, ch. 2, pp.

2-5 to 2-8; 4-2 to 4-6; Figure 4-1. The Drainage Plan also established that

the increase [***9] in impervious surfaces associated with continued

urbanization would exacerbate these flooding problems. To combat these

risks, the Drainage Plan suggested a series of improvements to the Fanno

Creek Basin, including channel excavation in the area next to petitioner's

property. App. to Pet. for Cert. G-13, G-38. Other recommendations included

ensuring that the floodplain remains free of structures and that it be

preserved as greenways to minimize flood damage to structures. Record, Doc.

No. F, ch. 5, pp. 5-16 to 5-21. The Drainage Plan concluded that the cost

of these improvements should be shared based on both direct and indirect

benefits, with property owners along the water-ways paying more due to the

direct benefit that they would receive. Id., ch. 8, p. 8-11. CDC Chapters

18.84 and 18.86 [*379] and CDC ß 18.164.100 and the Tigard Park Plan

carry out these recommendations.

 

Petitioner Florence Dolan owns a plumbing and electric supply store located

on Main Street in the Central Business District of the city. The store

covers approximately 9,700 square feet on the eastern side of a 1.67-acre

parcel, which includes a gravel parking lot. Fanno Creek flows through the

southwestern [***10] corner of the lot and along its western boundary.

The year-round flow of the creek renders the area within the creek's

100-year floodplain virtually unusable for commercial development. The

city's comprehensive plan includes the Fanno Creek floodplain as part of

the city's greenway system.

 

Petitioner applied to the city for a permit to redevelop the site. Her

proposed plans called for nearly doubling the size of the store to 17,600

square feet and paving a 39-space parking lot. The existing store, located

on the opposite side of the parcel, would be razed in sections as

construction progressed on the new building. In the second phase of the

project, petitioner proposed to build an additional structure on the

northeast side of [**2314] the site for complementary businesses and to

provide more parking. The proposed expansion and intensified use are

consistent with the city's zoning scheme in the Central Business District.

CDC ß 18.66.030, App. to Brief for Petitioner C-1 to C-3.

 

The City Planning Commission (Commission) granted petitioner's permit

application subject to conditions imposed by the city's CDC. The CDC

establishes the following standard for site development [***11] review

approval:

 

 

 

"Where landfill and/or development is allowed within and adjacent

to the 100-year floodplain, the City shall require the dedication

of sufficient open land area for greenway adjoining and within

the floodplain. This area shall include portions at a suitable

elevation for the construction of a pedestrian/bicycle pathway

within the [*380] floodplain in accordance with the adopted

pedestrian/bicycle plan." CDC ß 18.120.180.A.8, App. to Brief for

Respondent B-45 to B-46.

 

 

 

Thus, the Commission required that petitioner dedicate the portion of her

property lying within the 100-year floodplain for improvement of a storm

drainage system along Fanno Creek and that she dedicate an additional

15-foot strip of land adjacent to the floodplain as a pedestrian/bicycle

pathway. n2 The dedication required by that condition encompasses

approximately 7,000 square feet, or roughly 10% of the property. In

accordance with city practice, petitioner could rely on the dedicated

property to meet the 15% open space and landscaping requirement mandated by

the city's zoning scheme. App. to Pet. for Cert. G-28 to G-29. The city

would bear the cost of maintaining a landscaped [***12] buffer between

the dedicated area and the new store. Id., at G-44 to G-45.

 

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n2 The city's decision includes the following relevant conditions: "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."

App. to Pet. for Cert. G-43.

 

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Petitioner requested variances from the CDC standards. Variances are

granted only where it can be shown that, owing to special circumstances

related to a specific piece of the land, the literal interpretation of the

applicable zoning provisions would cause "an undue or unnecessary hardship"

unless the variance is granted. CDC ß 18.134.010, App. to Brief for

Respondent B-47. n3 Rather than posing alternative [*381] mitigating

measures to offset the expected [***13] impacts of her proposed

development, as allowed under the CDC, petitioner simply argued that her

proposed development would not conflict with the policies of the

comprehensive plan. Id., at E-4. The Commission denied the request.

 

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n3 CDC ß 18.134.050 contains the following criteria whereby the

decision-making authority can approve, approve with modifications, or deny

a variance request:

"(1) The proposed variance will not be materially detrimental to the

purposes of this title, be in conflict with the policies of the

comprehensive plan, to any other applicable policies and standards, and to

other properties in the same zoning district or vicinity;

"(2) There are special circumstances that exist which are peculiar to the

lot size or shape, topography or other circumstances over which the

applicant has no control, and which are not applicable to other properties

in the same zoning district;

"(3) The use proposed will be the same as permitted under this title and

City standards will be maintained to the greatest extent possible, while

permitting some economic use of the land;

"(4) Existing physical and natural systems, such as but not limited to

traffic, drainage, dramatic land forms, or parks will not be adversely

affected any more than would occur if the development were located as

specified in the title; and

"(5) The hardship is not self-imposed and the variance requested is the

minimum variance which would alleviate the hardship." App. to Brief for

Respondent B-49 to B-50.

 

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The Commission made a series of findings concerning the relationship

between the dedicated conditions and the projected impacts of petitioner's

project. First, the Commission noted that "it is reasonable to assume that

customers and employees of the future uses of this site could utilize a

pedestrian/bicycle pathway adjacent to this development for their

transportation and recreational needs." [**2315] City of Tigard Planning

Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-24. The

Commission noted that the site plan has provided for bicycle parking in a

rack in front of the proposed building and "it is reasonable to expect that

some of the users of the bicycle parking provided for by the site plan will

use the pathway adjacent to Fanno Creek if it is constructed." Ibid. In

addition, the Commission found that creation of a convenient, safe

pedestrian/bicycle pathway system as an alternative means of transportation

"could [*382] offset some of the traffic demand on [nearby] streets and

lessen the increase in traffic congestion." Ibid.

 

The Commission went on to note that the required floodplain dedication

would be reasonably related to petitioner's request [***15] to intensify

the use of the site given the increase in the impervious surface. The

Commission stated that the "anticipated increased storm water flow from the

subject property to an already strained creek and drainage basin can only

add to the public need to manage the stream channel and floodplain for

drainage purposes." Id., at G-37. Based on this anticipated increased storm

water flow, the Commission concluded that "the requirement of dedication of

the floodplain area on the site is related to the applicant's plan to

intensify development on the site." Ibid. The Tigard City Council approved

the Commission's final order, subject to one minor modification; the city

council reassigned the responsibility for surveying and marking the

floodplain area from petitioner to the city's engineering department. Id.,

at G-7.

 

Petitioner appealed to the Land Use Board of Appeals (LUBA) on the ground

that the city's dedication requirements were not related to the proposed

development, and, therefore, those requirements constituted an

uncompensated taking of her property under the Fifth Amendment. In

evaluating the federal taking claim, LUBA assumed that the city's findings

[***16] about the impacts of the proposed development were supported by

substantial evidence. Dolan v. Tigard, LUBA 91-161 (Jan. 7, 1992),

reprinted at App. to Pet. for Cert. D-15, n. 9. Given the undisputed fact

that the proposed larger building and paved parking area would increase the

amount of impervious surfaces and the runoff into Fanno Creek, LUBA

concluded that "there is a 'reasonable relationship' between the proposed

development and the requirement to dedicate land along Fanno Creek for a

greenway." Id., at D-16. With respect to the pedestrian/bicycle pathway,

LUBA noted the Commission's finding that a significantly [*383] larger

retail sales building and parking lot would attract larger numbers of

customers and employees and their vehicles. It again found a "reasonable

relationship" between alleviating the impacts of increased traffic from the

development and facilitating the provision of a pedestrian/bicycle pathway

as an alternative means of transportation. Ibid.

 

The Oregon Court of Appeals affirmed, rejecting petitioner's contention

that in Nollan v. California Coastal Comm'n, 483 U.S. 825, 97 L. Ed. 2d

677, 107 S. Ct. 3141 (1987), we had abandoned [***17] the "reasonable

relationship" test in favor of a stricter "essential nexus" test. 113 Ore.

App. 162, 832 P.2d 853 (1992). The Oregon Supreme Court affirmed. 317 Ore.

110, 854 P.2d 437 (1993). The court also disagreed with petitioner's

contention that the Nollan Court abandoned the "reasonably related" test.

317 Ore. at 118, 854 P.2d at 442. Instead, the court read Nollan to mean

that an "exaction is reasonably related to an impact if the exaction serves

the same purpose that a denial of the permit would serve." 317 Ore. at 120,

854 P.2d at 443. The court decided that both the pedestrian/bicycle pathway

condition and the storm drainage dedication had an essential nexus to the

development of the proposed site. Id., at 121, 854 P.2d at 443. Therefore,

the court found the conditions to be reasonably related to the impact of

the expansion of petitioner's business. Ibid. n4 [**2316] We granted

certiorari, 510 U.S. 989 (1993), because of an alleged conflict between the

Oregon Supreme Court's decision and our decision in Nollan, supra.

 

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n4 The Supreme Court of Oregon did not address the consequences of

petitioner's failure to provide alternative mitigation measures in her

variance application and we take the case as it comes to us. Accordingly,

we do not pass on the constitutionality of the city's variance provisions.

 

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II

 

The Takings Clause of the Fifth Amendment of the United States

Constitution, made applicable to the States through the Fourteenth

Amendment, Chicago, B. & Q. R. Co. v. Chicago, [*384] 166 U.S. 226, 239,

17 S. Ct. 581, 41 L. Ed. 979 (1897), provides: "Nor shall private property

be taken for public use, without just compensation." n5 One of the

principal purposes of the Takings Clause is "to bar Government from forcing

some people alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole." Armstrong v. United

States, 364 U.S. 40, 49, 4 L. Ed. 2d 1554, 80 S. Ct. 1563 (1960). Without

question, had the city simply required petitioner to dedicate a strip of

land along Fanno Creek for public use, rather than conditioning the grant

of her permit to redevelop her property on such a dedication, a taking

would have occurred. Nollan, supra, at 831. Such public access would

deprive petitioner of the right to exclude others, "one of the most

essential sticks in the bundle of rights that are commonly characterized as

property." Kaiser Aetna v. United States, 444 U.S. 164, 176, 62 L. Ed.

[***19] 2d 332, 100 S. Ct. 383 (1979).

 

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n5 JUSTICE STEVENS' dissent suggests that this case is actually grounded in

"substantive" due process, rather than in the view that the Takings Clause

of the Fifth Amendment was made applicable to the States by the Fourteenth

Amendment. But there is no doubt that later cases have held that the

Fourteenth Amendment does make the Takings Clause of the Fifth Amendment

applicable to the States, see Penn Central Transp. Co. v. New York City,

438 U.S. 104, 122, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978); Nollan v.

California Coastal Comm'n, 483 U.S. 825, 827, 97 L. Ed. 2d 677, 107 S. Ct.

3141 (1987). Nor is there any doubt that these cases have relied upon

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct.

581 (1897), to reach that result. See, e. g., Penn Central, supra, at 122

("The issue presented . . . [is] whether the restrictions imposed by New

York City's law upon appellants' exploitation of the Terminal site effect a

'taking' of appellants' property for a public use within the meaning of the

Fifth Amendment, which of course is made applicable to the States through

the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.S.

226, 239, 41 L. Ed. 979, 17 S. Ct. 581 (1897)").

 

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On the other side of the ledger, the authority of state and local

governments to engage in land use planning has been sustained against

constitutional challenge as long ago as our decision in Village of Euclid

v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926).

"Government hardly could go on if to some extent values incident to

property could not be diminished [*385] without paying for every such

change in the general law." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,

413, 67 L. Ed. 322, 43 S. Ct. 158 (1922). A land use regulation does not

effect a taking if it "substantially advances legitimate state interests"

and does not "deny an owner economically viable use of his land." Agins v.

City of Tiburon, 447 U.S. 255, 260, 65 L. Ed. 2d 106, 100 S. Ct. 2138

(1980). n6

 

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n6 There can be no argument that the permit conditions would deprive

petitioner of "economically beneficial use" of her property as she

currently operates a retail store on the lot. Petitioner assuredly is able

to derive some economic use from her property. See, e. g., Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1019, 120 L. Ed. 2d 798, 112 S.

Ct. 2886 (1992); Kaiser Aetna v. United States, 444 U.S. 164, 175, 62 L.

Ed. 2d 332, 100 S. Ct. 383 (1979); Penn Central Transp. Co. v. New York

City, supra, at 124.

 

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The sort of land use regulations discussed in the cases just cited,

however, differ in two relevant particulars from the present case. First,

they involved essentially legislative determinations classifying entire

areas of the city, whereas here the city made an adjudicative decision to

condition petitioner's application for a building permit on an individual

parcel. Second, the conditions imposed were not simply a limitation on the

use petitioner might make of her own parcel, but a requirement that she

deed portions of the property to the city. In Nollan, supra, we [**2317]

held that governmental authority to exact such a condition was

circumscribed by the Fifth and Fourteenth Amendments. Under the

well-settled doctrine of "unconstitutional conditions," the government may

not require a person to give up a constitutional right -- here the right to

receive just compensation when property is taken for a public use -- in

exchange for a discretionary benefit conferred by the government where the

benefit sought has little or no relationship to the property. See Perry v.

Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972);

Pickering v. Board [***22] of Ed. of Township High School Dist. 205, Will

Cty., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).

 

Petitioner contends that the city has forced her to choose between the

building permit and her right under the Fifth [*386] Amendment to just

compensation for the public easements. Petitioner does not quarrel with the

city's authority to exact some forms of dedication as a condition for the

grant of a building permit, but challenges the showing made by the city to

justify these exactions. She argues that the city has identified "no

special benefits" conferred on her, and has not identified any "special

quantifiable burdens" created by her new store that would justify the

particular dedications required from her which are not required from the

public at large.

 

III

 

In evaluating petitioner's claim, we must first determine whether the

"essential nexus" exists between the "legitimate state interest" and the

permit condition exacted by the city. Nollan, 483 U.S. at 837. If we find

that a nexus exists, we must then decide the required degree of connection

between the exactions and the projected impact of the proposed development.

We were not required to reach this [***23] question in Nollan, because we

concluded that the connection did not meet even the loosest standard. 483

U.S. at 838. Here, however, we must decide this question.

 

A

 

We addressed the essential nexus question in Nollan. The California Coastal

Commission demanded a lateral public easement across the Nollans'

beachfront lot in exchange for a permit to demolish an existing bungalow

and replace it with a three-bedroom house. 483 U.S. at 828. The public

easement was designed to connect two public beaches that were separated by

the Nollans' property. The Coastal Commission had asserted that the public

easement condition was imposed to promote the legitimate state interest of

diminishing the "blockage of the view of the ocean" caused by construction

of the larger house.

 

We agreed that the Coastal Commission's concern with protecting visual

access to the ocean constituted a legitimate [*387] public interest. 483

U.S. at 835. We also agreed that the permit condition would have been

constitutional "even if it consisted of the requirement that the Nollans

provide a viewing spot on their property for passersby with whose sighting

of the ocean their new house would interfere." 483 [***24] U.S. at 836.

We resolved, however, that the Coastal Commission's regulatory authority

was set completely adrift from its constitutional moorings when it claimed

that a nexus existed between visual access to the ocean and a permit

condition requiring lateral public access along the Nollans' beachfront

lot. 483 U.S. at 837. How enhancing the public's ability to "traverse to

and along the shorefront" served the same governmental purpose of "visual

access to the ocean" from the roadway was beyond our ability to

countenance. The absence of a nexus left the Coastal Commission in the

position of simply trying to obtain an easement through gimmickry, which

converted a valid regulation of land use into "'an out-and-out plan of

extortion.'" Ibid., quoting J. E. D. Associates, Inc. v. Atkinson, 121 N.H.

581, 584, 432 A.2d 12, 14-15 (1981).

 

No such gimmicks are associated with the permit conditions imposed by the

city in this case. Undoubtedly, the prevention of flooding [**2318] along

Fanno Creek and the reduction of traffic congestion in the Central Business

District qualify as the type of legitimate public purposes we have upheld.

Agins, 447 U.S. at 260-262. [***25] It seems equally obvious that a nexus

exists between preventing flooding along Fanno Creek and limiting

development within the creek's 100-year floodplain. Petitioner proposes to

double the size of her retail store and to pave her now-gravel parking lot,

thereby expanding the impervious surface on the property and increasing the

amount of storm water runoff into Fanno Creek.

 

The same may be said for the city's attempt to reduce traffic congestion by

providing for alternative means of transportation. In theory, a

pedestrian/bicycle pathway provides a useful alternative means of

transportation for workers and shoppers: "Pedestrians and bicyclists

occupying dedicated [*388] spaces for walking and/or bicycling . . .

remove potential vehicles from streets, resulting in an overall improvement

in total transportation system flow." A. Nelson, Public Provision of

Pedestrian and Bicycle Access Ways: Public Policy Rationale and the Nature

of Private Benefits 11, Center for Planning Development, Georgia Institute

of Technology, Working Paper Series (Jan. 1994). See also Intermodal

Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, 105 Stat.

1914 (recognizing pedestrian and bicycle [***26] facilities as necessary

components of any strategy to reduce traffic congestion).

 

B

 

The second part of our analysis requires us to determine whether the degree

of the exactions demanded by the city's permit conditions bears the

required relationship to the projected impact of petitioner's proposed

development. Nollan, supra, at 834, quoting Penn Central Transp. Co. v. New

York City, 438 U.S. 104, 127, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978)

("'[A] use restriction may constitute a "taking" if not reasonably

necessary to the effectuation of a substantial government purpose'"). Here

the Oregon Supreme Court deferred to what it termed the "city's

unchallenged factual findings" supporting the dedication conditions and

found them to be reasonably related to the impact of the expansion of

petitioner's business. 317 Ore. at 120-121, 854 P.2d at 443.

 

The city required that petitioner dedicate "to the City as Greenway all

portions of the site that fall within the existing 100-year floodplain [of

Fanno Creek] . . . and all property 15 feet above [the floodplain]

boundary." Id., at 113, n. 3, 854 P.2d at 439, n. 3. In addition, the city

demanded that the retail store be [***27] designed so as not to intrude

into the greenway area. The city relies on the Commission's rather

tentative findings that increased storm water flow from petitioner's

property "can only add to the public need to manage the [floodplain] for

drainage purposes" to support its conclusion that the "requirement of

dedication of the floodplain area on [*389] the site is related to the

applicant's plan to intensify development on the site." City of Tigard

Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-37.

 

The city made the following specific findings relevant to the

pedestrian/bicycle pathway:

 

 

 

"In addition, the proposed expanded use of this site is

anticipated to generate additional vehicular traffic thereby

increasing congestion on nearby collector and arterial streets.

Creation of a convenient, safe pedestrian/bicycle pathway system

as an alternative means of transportation could offset some of

the traffic demand on these nearby streets and lessen the

increase in traffic congestion." Id., at G-24.

 

The question for us is whether these findings are constitutionally

sufficient to justify the conditions imposed by the city on petitioner's

[***28] building permit. Since state courts have been dealing with this

question a good deal longer than we have, we turn to representative

decisions made by them.

 

In some States, very generalized statements as to the necessary connection

between the required dedication and the proposed development seem to

suffice. See, e. g., Billings Properties, Inc. v. Yellowstone County, 144

Mont. 25, 394 P.2d 182 (1964); [**2319] Jenad, Inc. v. Scarsdale, 18

N.Y.2d 78, 218 N.E.2d 673, 271 N.Y.S.2d 955 (1966). We think this standard

is too lax to adequately protect petitioner's right to just compensation if

her property is taken for a public purpose.

 

Other state courts require a very exacting correspondence, described as the

"specific and uniquely attributable" test. The Supreme Court of Illinois

first developed this test in Pioneer Trust & Savings Bank v. Mount

Prospect, 22 Ill. 2d 375, 380, 176 N.E.2d 799, 802 (1961). n7 Under this

standard, [*390] if the local government cannot demonstrate that its

exaction is directly proportional to the specifically created need, the

exaction becomes "a veiled exercise of the power of eminent domain and a

confiscation of private [***29] property behind the defense of police

regulations." Id., at 381, 176 N.E.2d at 802. We do not think the Federal

Constitution requires such exacting scrutiny, given the nature of the

interests involved.

 

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- -

 

n7 The "specifically and uniquely attributable" test has now been adopted

by a minority of other courts. See, e. g., J. E. D. Associates, Inc. v.

Atkinson, 121 N.H. 581, 585, 432 A.2d 12, 15 (1981); Divan Builders, Inc.

v. Planning Bd. of Twp. of Wayne, 66 N.J. 582, 600-601, 334 A.2d 30, 40

(1975); McKain v. Toledo City Plan Comm'n, 26 Ohio App. 2d 171, 176, 270

N.E.2d 370, 374 (1971); Frank Ansuini, Inc. v. Cranston, 107 R.I. 63, 69,

264 A.2d 910, 913 (1970).

 

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- -

 

A number of state courts have taken an intermediate position, requiring the

municipality to show a "reasonable relationship" between the required

dedication and the impact of the proposed development. Typical is the

Supreme Court of Nebraska's opinion in Simpson v. North Platte, 206 Neb.

240, 245, 292 N.W.2d 297, [***30] 301 (1980), where that court stated:

 

"The distinction, therefore, which must be made between an

appropriate exercise of the police power and an improper exercise

of eminent domain is whether the requirement has some reasonable

relationship or nexus to the use to which the property is being

made or is merely being used as an excuse for taking property

simply because at that particular moment the landowner is asking

the city for some license or permit."

 

 

 

Thus, the court held that a city may not require a property owner to

dedicate private property for some future public use as a condition of

obtaining a building permit when such future use is not "occasioned by the

construction sought to be permitted." Id., at 248, 292 N.W.2d at 302.

 

Some form of the reasonable relationship test has been adopted in many

other jurisdictions. See, e. g., Jordan v. Menomonee Falls, 28 Wis. 2d 608,

137 N.W.2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N.W.2d 19

(1976) (requiring a showing of a reasonable relationship between [*391]

the planned subdivision and the municipality's need for land); College

Station v. Turtle Rock Corp., 680 S.W.2d [***31] 802, 807 (Tex. 1984);

Call v. West Jordan, 606 P.2d 217, 220 (Utah 1979) (affirming use of the

reasonable relation test). Despite any semantical differences, general

agreement exists among the courts "that the dedication should have some

reasonable relationship to the needs created by the [development]." Ibid.

See generally Note, "'Take' My Beach Please!": Nollan v. California Coastal

Commission and a Rational-Nexus Constitutional Analysis of Development

Exactions, 69 B. U. L. Rev. 823 (1989); see also Parks v. Watson, 716 F.2d

646, 651-653 (CA9 1983).

 

We think the "reasonable relationship" test adopted by a majority of the

state courts is closer to the federal constitutional norm than either of

those previously discussed. But we do not adopt it as such, partly because

the term "reasonable relationship" seems confusingly similar to the term

"rational basis" which describes the minimal level of scrutiny under the

Equal Protection Clause of the Fourteenth Amendment. We think a term such

as "rough proportionality" best encapsulates what we hold to be the

requirement of the Fifth Amendment. No precise mathematical calculation is

required, but the city must make [***32] some sort of individualized

determination that the required dedication [**2320] is related both in

nature and extent to the impact of the proposed development. n8

 

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- -

 

n8 JUSTICE STEVENS' dissent takes us to task for placing the burden on the

city to justify the required dedication. He is correct in arguing that in

evaluating most generally applicable zoning regulations, the burden

properly rests on the party challenging the regulation to prove that it

constitutes an arbitrary regulation of property rights. See, e. g., Village

of Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114

(1926). Here, by contrast, the city made an adjudicative decision to

condition petitioner's application for a building permit on an individual

parcel. In this situation, the burden properly rests on the city. See

Nollan, 483 U.S. at 836. This conclusion is not, as he suggests, undermined

by our decision in Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531,

97 S. Ct. 1932 (1977), in which we struck down a housing ordinance that

limited occupancy of a dwelling unit to members of a single family as

violating the Due Process Clause of the Fourteenth Amendment. The ordinance

at issue in Moore intruded on choices concerning family living

arrangements, an area in which the usual deference to the legislature was

found to be inappropriate. Id., at 499.

 

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- - [***33]

 

[*392] JUSTICE STEVENS' dissent relies upon a law review article for the

proposition that the city's conditional demands for part of petitioner's

property are "a species of business regulation that heretofore warranted a

strong presumption of constitutional validity." Post, at 402. But simply

denominating a governmental measure as a "business regulation" does not

immunize it from constitutional challenge on the ground that it violates a

provision of the Bill of Rights. In Marshall v. Barlow's, Inc., 436 U.S.

307, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978), we held that a statute

authorizing a warrantless search of business premises in order to detect

OSHA violations violated the Fourth Amendment. See also Air Pollution

Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U.S. 861, 40 L. Ed. 2d

607, 94 S. Ct. 2114 (1974); New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d

601, 107 S. Ct. 2636 (1987). And in Central Hudson Gas & Elec. Corp. v.

Public Serv. Comm'n of N. Y., 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct.

2343 (1980), we held that an order of the New York Public Service

Commission, designed to cut down the use of electricity because [***34]

of a fuel shortage, violated the First Amendment insofar as it prohibited

advertising by a utility company to promote the use of electricity. We see

no reason why the Takings Clause of the Fifth Amendment, as much a part of

the Bill of Rights as the First Amendment or Fourth Amendment, should be

relegated to the status of a poor relation in these comparable

circumstances. We turn now to analysis of whether the findings relied upon

by the city here, first with respect to the floodplain easement, and second

with respect to the pedestrian/bicycle path, satisfied these requirements.

 

It is axiomatic that increasing the amount of impervious surface will

increase the quantity and rate of storm water flow from petitioner's

property. Record, Doc. No. F, ch. 4, [*393] p. 4-29. Therefore, keeping

the floodplain open and free from development would likely confine the

pressures on Fanno Creek created by petitioner's development. In fact,

because petitioner's property lies within the Central Business District,

the CDC already required that petitioner leave 15% of it as open space and

the undeveloped floodplain would have nearly satisfied that requirement.

App. to Pet. for Cert. G-16 to G-17. [***35] But the city demanded more

-- it not only wanted petitioner not to build in the floodplain, but it

also wanted petitioner's property along Fanno Creek for its greenway

system. The city has never said why a public greenway, as opposed to a

private one, was required in the interest of flood control.

 

The difference to petitioner, of course, is the loss of her ability to

exclude others. As we have noted, this right to exclude others is "one of

the most essential sticks in the bundle of rights that are commonly

characterized as property." Kaiser Aetna, 444 U.S. at 176. It is difficult

to see why recreational visitors trampling along petitioner's floodplain

easement are sufficiently related to the city's legitimate interest in

reducing flooding problems along Fanno Creek, and the city has not

attempted to [**2321] make any individualized determination to support