No precise mathematical calculation is required for the rough proportionality test, but a city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.
Dolan v. City of Tigard
Respondent city adopted a comprehensive land use plan at Oregon's requirement. It limited property owners to 85% total site coverage and required new developments to dedicate land for pedestrian pathways. The city also adopted a drainage plan, which recommended that the floodplain remain free of structures and that new drainage improvements be added next petitioner's property. The cost of these improvements was to be shared based on benefits, with property owners nearest paying the most.
Petitioner applied for a permit to expand her business next to a creek covered by the city's comprehensive plan. The city granted the permit conditioned upon petitioner dedicating 10% of her property for storm drainage and pedestrian pathway development, in accordance with the city's development code. Petitioner was allowed to count the 10% dedicated as part of the 15% that had to remain open, and the city agreed to maintain a barrier between the dedicated land her store.
Respondent's commission found that the dedication would be reasonably related to petitioner's request to intensify development on the site.
The Land Use Board of Appeals affirmed.
The Oregon Court of Appeals affirmed.
The Oregon Supreme Court affirmed.
What is the required degree of connection between exactions imposed by a city and the projected impacts of a proposed development?
The necessary connection between the required dedication and the proposed development is should be judged by the "rough proportionality" test.
Requiring one to dedicate land for public use without conditioning the permit is without question a taking. 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." However, land use regulations classify entire areas of cities, not individual parcels as here, and they limit how an owner may use his land instead of requiring that it be deeded to the city.
The lower courts deferred to the city's factual findings that supported the dedication being reasonably related to the impact of the expansion. While it is evident that increasing it amount of impervious surface will increase the water flowing from the property, the development code already required that petitioner leave 15% of her property open. Only requiring her to not build on the floodplain would almost satisfy this, but the city for some reason insisted that she also give it her property along the creek for flood control. No reason has been given why this would need to be a public greenway instead of a private one. Taking it from her would remove her right to exclude others from the area.
Ordinarily, dedications for public pathways are generally reasonable exactions to avoid excessive congestion from a proposed use, but respondent has not shown that petitioner's expansion would generate traffic reasonably related to the dedication of the pathway easement. It has only said that it could offset some of the traffic demand, not that it was likely to.
Reversed and remanded.
: Petitioner's property would be more valuable with the expansion and lost land than it currently is. After considering taxes, the floodplain land is likely worth less than nothing to petitioner. Petitioner had the option of building her own water storage facility instead of dedicating land, but chose not to.
It is reasonable to assume that building a bike path will offset at least some vehicle traffic. Even if predictions were made, they are still just estimates. It does not matter how much of the traffic is offset.
The city should not have the burden of proof. A valid comprehensive land use plan should be presumed to be constitutional, and the petitioner should have the burden of demonstrating otherwise. The lower court's judgment should have been affirmed.
: The city did not argue that the recreational easement was related to flood control. It merely argued that the recreational uses were incidental to the condition requiring dedication of an easement for a bicycle path and flood control.
The city should not have to prove that the bicycle path would offset traffic, as it is presumed to be a valid use of the city's police power. Petitioner has not shown that it would not offset traffic, and the city did calculate the increased vehicle traffic flow that would result and that there is a link between bicycle paths and reduced vehicle traffic.
No new law should be established in this case in any event.