Property

Brief

Dolan v. City of Tigard

Procedural History:

• Circuit Court for City
• Appealed
• Affirmed
• Appealed
• Oregon Supreme Court holds for City.
• Appealed.
• Reversed and Remanded.

Facts:

• Dolan owns a plumbing and electric supply store in the Central Business District of the city.
• Fanno Creek flows through the southwestern corner of the lot and along its western boundary.
• The CDC requires property owners in the area to comply with a 15% open space and landscaping requirement which limits total site coverage to 85% of the parcel.
• Dolan applied to the city for a permit to redevelop the site.
• The proposed plan is inconsistent with the city’s zoning scheme.
• The city agreed to the plan subject to conditions.
  • Must be subject to dedication of sufficient open land area for greenway and the area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway.
• The condition would dedicate roughly 10% of the land.
• The petitioner loses their ability to exclude under this condition.
• Dolan requested variances.
  • Commission denied.

Issue:

• Is the approval subject to conditions a taking?

Holding:

• Yes.

Reasoning:

• Petitioner argues that the conditions are not related to the development.
• The court relies on evidence that is being inferred as there is no real evidence to prove increased traffic and drainage issues.
• Court looks to the Specific and Uniquely attributable Test
  • If the local gov. cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes a confiscation.
• The court instead looks to a reasonable relationship, or better termed rough proportionality test.
• The fact that the city wanted more than what was necessary proves this to be a taking.
• Court can not find a reasonable relationship between the floodplain easement and the new building.