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permit conditions and development exactions. The more -
<br />indirect the nexus betwee~the exaction imposed and the public
<br />needs created, the more vulnerable the exaction is to successful
<br />regulator), takings challenges INollan v. California Coastal
<br />Commission, 483 U.S. 82~ (1987)].
<br />
<br />Hollan and the EsSential Nexus
<br />
<br />In 1987, the U.S. Suprem8 Court considered whether a
<br />condition imposed on app{oval ora building permit constituted
<br />a taking of private properr~ without just compensation. In
<br />Nollan, the Court ruled that the state could not condition
<br />issuance of a permit on th61andowners' dedication of a public
<br />easement across their bead{front propert), because no nexus
<br />existed between the permit~condition and the public purpose of
<br />ensuring public beach acce!s.
<br /> When the Nollans applied for a permit to enlarge their
<br />bungalow, the California ~oastal Commission found that the
<br />neg' structure would increa, se obstruction of the ocean view.
<br />lLatber than probfl:nt the ct~nstruct~on altogether, the
<br />commission sought to impbse the beach access conditiom The
<br />Court found thc conditionluntelated to visual access. Justice
<br />Scalia stated that "[t]he eviilent constitutional propriety
<br />disappears, however, if the ~:ondition substituted for the
<br />prohibition utterly fails to further the end advanced as the
<br />justification for thc prohiNt,on. When the essential nexus is
<br />eliminated, the situation b~comes the same as if California law
<br />forbade shouting fire in a c}owded theater, but granted
<br />dispensation to those willing to contribute $100 to the state
<br />treasury." The Court concluded that the permit condition
<br />amounted to a regulator), t~.king.
<br /> Before the decision in Dolan, the Supreme Court's takings
<br />decisions followe, d the gen~alized standard that a land-use
<br />regulation must 'substantia[lly advance a legitimate state
<br />interest" and not deny a laridowner economically viable use of
<br />his land [Agins v. Ci9, of Ti~uron, 447 U.S. ,-55 (1980); Penn
<br />Central]. However, no cicai test was ever articulated for
<br />determining what constitu~s a legitimate state interest or what
<br />type of connection between~ the regulation and the state interest
<br />satisfies the requirement.
<br /> In Nollan, the coastal co~mission argued that this
<br />reasonable relanonshtp te~t should be appl,ed when
<br />determining how close a "ilk" was necessary between the
<br />condition imposed and the ?ublic need or burden created by
<br />the proposed development ~r land use. The Court did not reach
<br />that issue, however, becausd it found that "this case does not
<br />meet even the most untailo}ed standards."
<br /> 5tare courts have been u}ing a "reasonable relationship" test
<br />to determine whether a regfilation substantially advances a
<br />legitimate public interest. ~nder this standard, if the restriction
<br />imposed by the regulation i~ reasonably related to a legitimate
<br />purpose, the regulation witlistands constitutional attack.
<br />Following Nollan, many commentators speculated as to whether
<br />a "substantial relationship" !est was required for development
<br />conditions or exactions. Th{~ state courts, however, continued to
<br />apply the traditional "reasoOablc relationship" test.
<br />
<br />Doian and a Hew Standard
<br />In Dolan, the Supreme CorOt set out to resolve the question left
<br />open m Nollan concerning ~the requtred degree of connecnon
<br />between the exactions imposed by the city and the projected
<br />
<br />Mark Dennison is an artorn~ and author who practices environ-
<br />mental, land-use, and zoningilaw in Ridgewood, New Jersey.
<br />2 ~
<br />
<br />impacts of the proposed development." In state court, the
<br />landowner argued for a "substantial relationship" test. The
<br />Oregon Supreme Court, however, upheld the development
<br />exactions under a reasonable relationship test, stating that it was
<br />"unable to agree with the petitioners that the Nollan court
<br />abandoned the 'reasonably related' test."
<br /> Venturing further down the dangerous, result-oriented path
<br />it took in 1992 in Lucas v. South Carolina Coastal Council the
<br />Court has nog, pronounced yet another dubious standard--the
<br />"rough proportionality" test--to justin, questionable reasoning
<br />used to invalidate certain development exactions as a {aking of
<br />private property ~vithout just compensation. Although Lucas
<br />focused only on a rather narrow aspect of takings lag,.
<br />jurisprudence~regulations that deprive a landowner of all
<br />productive and beneficial use of property--it turns out to have
<br />foreshadowed the Court's pro-property rights stance..
<br /> After reviewing the standards that state courts have
<br />traditionally applied, the Court created a brand new test for
<br />determining the constitutionality of development conditions
<br />and exactions, stating:
<br />
<br /> We think the %easonable relationship" test adopted by a
<br /> majority of the state courts is closer to the federal constitutional
<br /> norm than either of those previously discussed ["rational basis"
<br /> and "specific and uniquely attributable" tests]. But we do not
<br /> adopt it as such, partly because the term "reasonable
<br /> relationship" seems confusingly similar to the term "rational
<br /> basis" which describes the minimal level of scrutiny under the
<br /> Equal Protection Clause of the Fourteenth Amendment. We
<br /> think a term such as "rough proportionality" best encapsulates
<br /> what we hold to be the requirement of the Fifth Amendment.
<br /> No precise mathematical calculation is required, but the ciD,
<br /> must make some sort of individualized determination that the
<br /> required dedication is related both in nature and extent to the
<br /> impact of the proposed development.
<br />
<br /> Having announced its new test, the Court then analyzed the
<br />facts to det~e?mine whether the conditions imposed by the city
<br />of Tigard, Oregon, met this standard.
<br />
<br />Facts of the Dolan Case
<br />The landowner, Florence Dolan, owns and operates a plumbing
<br />and electric supply store in an area zoned central business district
<br />(CBD). The store covers approximately 9,700 square feet or/the
<br />eastern side of a 1.67-acre parcel. Fanno Creek flows through the
<br />lot's southwestern corner and along its western boundar)'. A
<br />portion of the property lying within the creek's 100-year
<br />floodplain is virtually unusable for commercial development.
<br /> The city adopted a comprehensive plan and codified it in its
<br />community development code (CDC). Among the plan's
<br />requirements, propert7 owners in the CBD needed to comply
<br />with a 15 percent open space and landscaping requirement. The
<br />city also adopted a plan for a pedestrian/bicycle pathway to
<br />encourage alternatives to automobile transportation in the
<br />CBD, as well as a master drainage plan to alleviate flooding
<br />problems along Fanno Creek, which included areas near the
<br />Dolan property.
<br /> Dolan applied to the city for a permit to increase the size of
<br />the store to 17,600 square feet and pave a 39-space parking lot.
<br />The city. planning commission approved the permit application
<br />subject to conditions imposed by the CDC, which establishes
<br />the following standard for site development review approval:
<br /> Where landfill and/or development is allowed within and
<br /> adjacent to thc 100-year floodplain, the ciD, shall require the
<br /> dedication of sufficient open land area for greenway adjoining
<br />
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