- [Narrator] The city of Tigard, Oregon
faced two problems.
Motor vehicle traffic clogged its central business district.
Meanwhile, as more buildings arose
with their impervious concrete surfaces,
rainwater runoff caused flooding.
In order to reduce automobile traffic,
the city planned sidewalks and bike paths.
To address the flooding,
the city required businesses to maintain
at least 15% of their parcels as open space.
The city also restricted development within the floodplain,
preserving it as a green way.
Florence Dolan owned a store within the floodplain.
Dolan wanted to double the size of her store
and to pave her gravel parking lot.
The city granted Dolan a building permit
subject to two conditions.
It demanded that she deed all her land
lying within the floodplain to the city
to be used for its greenway and storm drainage system.
The city also demanded an additional strip of land
for a walkway and bicycle path
to alleviate the additional traffic
caused by the larger store.
Altogether, the city demanded about 10% of her lot
in exchange for her building permit.
Dolan appealed these dedication requirements
to the Land Use Board of Appeals.
The board upheld both requirements.
The Oregon Court of Appeals
affirmed the board's decision
as did the Oregon Supreme Court.
Dolan then sought United States Supreme Court review.
The United States Supreme Court granted cert
to consider whether the city's permit conditions
were reasonably related to Dolan's expansion,
or whether they instead constituted
an uncompensated taking, in violation
of the fifth and 14th amendments.
Chief Justice Rehnquist ruled
that the city's dedication requirements
weren't sufficiently related
to the asserted governmental interests
and therefore violated the fifth amendment's Takings Clause.
He was joined by Justices O'Connor, Scalia,
Kennedy, and Thomas.
Rehnquist first noted that the Takings Clause is designed
to bar governments from forcing a few people alone
to bear financial burdens that,
in all fairness and justice,
should be borne by the public as a whole.
But governments do have the power to regulate land use,
and the court previously held that
when a government conditions land use on the land owner's
surrender of certain rights in that land, there must exist
an essential nexus between the permit condition
and a legitimate state interest.
The court now considered how closely the condition
had to relate to the asserted interest.
Rehnquist concludes that the city's conditions
had to bear a rough proportionality
to the impact of Dolan's development plan.
The court acknowledged that Dolan's expansion
would create more impervious surface area,
which would increase the risk of flooding.
So the city's open space requirement
and its prohibition on development within the floodplain
were both roughly proportional policy responses
to the development's impact.
However, the city's additional demands,
that Dolan deed the land within the floodplain
to the city and also deed additional land
for a sidewalk and bike path
weren't roughly proportional.
First, the city couldn't show
that a publicly-owned greenway was better
for flood control than a privately-owned greenway.
Second, although Dolan's expanded store
might cause more traffic,
the remedial effect was too speculative
to justify the city's demand to own
that portion of Dolan's land.
The court reversed the Oregon Supreme Court's decision.
Justice John Paul Stevens vigorously dissented,
joined by Justices Blackmun and Ginsberg.
He argued that the impact of Dolan's expansion
on traffic congestion and flooding
would have justified the city's outright rejection
of her expansion.
Instead, the city approved it subject to two
reasonable conditions that mitigated its adverse effects.
Stevens thought that the new rough proportionality standard
was arbitrary and difficult to apply.
Ultimately, when doubt exists
regarding the magnitude of a development's impact,
the public interest in averting that impact
must outweigh commercial entrepreneurs' private interests.
Stevens also criticized the fact
that the court's new approach seemed to place
the burden of proof on the government,
rather than on the private developer
seeking to avoid the conditions.
Governmental land use decisions have typically enjoyed
a presumption of constitutionality;
therefore, Stevens would have upheld the city's conditions.
Justice David Souter also dissented.
He argued that the court claimed to create a new test
but really only applied the old essential nexus test
from Nollan.
Under the majority's test, Souter would have joined
Justice Stevens in upholding the city's conditions.
Dolan has been criticized by courts
and academic commentators since it was released.
Nevertheless, it continues to be an important pronouncement
on the constitutionality of government exactions
as a cost of applying for development permits.