*1 Argued January Appeals decision of submitted the Court of and order of the 1, 1993 Appeals July Land Use Board of affirmed John T. DOLAN Dolan, and Florence Review, Petitioners on v. TIGARD,
CITY OF Respondent on Review.
(LUBA S39393) 91-161; CA A73769; SC
James M. Coleman, O’Donnell, Ramis, Crew & Corri- gan, Portland, argued cause and filed the response for respondent on review.
Daniel J. and Paul Popeo Kamenar, D. D.C., Washington, and Gregory S. Hathaway, of Garvey, Barer, Schubert & filed a brief amicus curiae for Washington Legal Portland, Foundation. J.
Timothy Sercombe and Sullivan, Edward J. Preston, Thorgrimson, Shidler, Gates, Ellis, & Portland, filed a brief amicus curiae for 1000 Friends of Oregon.
Ronald A. Zumbrun and Rivett, Robin L. Sacramento, California, and Richard M. Stephens, Bellevue, Washington, filed a brief amicus curiae for Pacific Legal Foundation.
VAN HOOMISSEN, J.
Peterson, J., dissented and filed an opinion. HOOMISSEN, J.
VAN land seek of a Petitioners use case review Court of a Final affirming decision Appeals’ Opinion (LUBA) Order of Land Use in favor of Appeals Board Dolan v. Tigard, respondent City Tigard (city). (1992). P2d has 162, 832 Or The issue whether App city demonstrated between the condi relationship tions it attached to its approval petitioners’ proposed land use Peti expected impacts of that land use.1 that, tioners because failed demonstrate argue “essential nexus” a “substantial between relationship” caused by city impacts exactions demanded exactions constitute proposed development, city’s under Fifth Amendment of the federal constitut “taking” ion.2 it need show “reasonable City responds between the relationship” imposition of conditions legitimate interest advanced. For reasons that follow, we decision. Appeals’ affirm Court own 1.67 of land in downtown acres “central business district” city’s land within Tigard. *3 (CBD-AA and to an “action area” zone overlay zone is subject zone). and use is a retail electric The land’s current as sales business, general a retail use. plumbing supply an a to remove city permit Petitioners for applied 17,600- to construct a existing building foot and 9,700-square and the electric building in which relocate square foot 1 cases, relationship between this is called the land-use sometimes “impacts.” “exactions” and the 2 Takings the United Amendment to the Constitution of Clause the Fifth provides: States use, compen- just private property for without “[N]or be taken shall
sation.” of the applicable Due Clause to the states Process That Clause is made 104, City, York 438 US Penn Trans. v. New Amendment. Central Co. Fourteenth (1978). Annot, Supreme As to 122, 2646, View Ed 2d See Court’s 98 S Ct 57 L 631 Meaning Prohibition ‘‘Taking’’ Amendment’s Within Constitutes a What of Fifth L Compensation, 89 Property Just Taking Public Use Without Against Private For (1988). 2dEd Oregon I, brought challenge of the under Article section Petitioners also Clause). however, they expressly court, have (Takings Before Constitution Oregon any Therefore, not address we do a federal claim. limited themselves constitutional issue. expand parking supply plumbing lot business and I). eventually (phase additional intend to build an Petitioners II); (phase provide parking on the site and to more structure expansion not that additional however, the exact nature of I) (phase specified. intensified use Petitioners’ overlay outright permitted however, the AA zone; in the CBD policies Tigard implements the of the Commu- zone, which city nity Development to attach conditions to Code,allows transportation provide projected development in order public facility needs. and application,
City granted petitioners’ as but prop- portion petitioners dedicate the of their conditions that erty lying 100-year floodplain improvement of a within the they drainage system and, further, dedicate storm additional 15-foot adjacent floodplain strip as a land to the pathway.3 sought pedestrian/bicycle variance city which denied.4 conditions, from those following 27-page order, final made the In its challenge petitioners pertinent concern- do not ing relationship the dedication conditions between project: anticipated impacts petitioners’ [City Variance “Analysis Request.
Planning] requirements Commission does not find adjacent floodplain area to the for dedication of the pedestrian/ of a greenway purposes and for construction taking applicant’s property. constitute a bicycle pathway Instead, path- finds that the dedication the Commission applicant’s to the construction are way of this site with intensify request use, first, to be added at and other uses general retail sales customers to assume that later. It is reasonable following condition: City’s relevant decision includes Greenway portions all applicant shall dedicate to “1. The (i.e., Creek] all 100-year floodplain [of Fanno existing within the site that fall (to 150.0) property above 15 feet and all portions below elevation *4 of) designed building so boundary. be floodplain The shall the 150.0 foot the east way green the area.” to intrude into as not feet, 7,000 square comprises about required that condition dedication The subject property. real percent of the approximately 10 Development stan Community Code requested to applicants variances The subject parcel things area of the among dedication of other requiring dards area additional and dedication floodplain of Fanno Creek 100-year within the path. pedestrian/bicycle floodplain 100-year for a adjacent to the of the future uses of
employees this site could utilize adjacent to pedestrian/bicycle pathway this for fact, recreational needs. In the transportation and site plan provided bicycle parking has for in a rack in front of the building for the proposed provide to needs facility’s It is employees. expect customers reasonable to bicycle parking some of the users of the for the provided adjacent will use if plan site the to Fanno Creek it is addition, the use of proposed expanded constructed. this traffic, anticipated generate site is additional vehicular to increasing thereby congestion nearby on collector and arte- convenient, rial Creation of a pedestrian/bicycle streets. safe pathway system transportation an alternative means of some could offset of the traffic demand on these nearby and lessen increase in congestion. streets the traffic point, report applicant’s “At the will the consider the the request from to dedicate site requirement portions 100-year within the of Fanno Creek for storm floodplain management water Statement purposes. applicant’s * * * does directly Variance not address Justification for ** draining storm water concerns *. find requirements “The Commission does not the Fanno dedication of area within the Creek floodplain management water and greenway purposes for storm consti- Instead, taking of applicant’s property. tutes a finds would Commission be intensify applicant’s request related to the site, increasing impervious usage thereby of this the site’s expected impervious The increased surface would area. the site to of storm water runoff from increase amount experi- Creek basin has drainage Fanno Creek. Fanno past years causing over the rapid enced urbanization precipita- flows after periods increase in stream significant flow from increased storm water anticipated tion. The already drainage strained creek subject the stream manage need can add to the basin drainage Because the floodplain purposes. channel add to the drainage would development’s storm floodplain, Fanno Creek public management need * * * area floodplain of dedication requirement intensify develop- plan applicant’s is related the site ’’ Final Planning Commission on the site. ment 13, 20-21. No. 91-09 PC at Order *5 City approved Council petitioners’ appeal, On final order. Commission’s Planning to LUBA. did not chal- They Petitioners appealed findings above city’s quoted lenge adequacy Rather, petitioners argued in the record. evidentiary support not to their are requirements dedication city’s and, therefore, require- those proposed development property of their uncompensated taking ments constitute an Amendment. under the Fifth claim, taking federal considering petitioners’ of the about the city’s findings impacts
LUBA assumed evi- were substantial supported by proposed development Dolan v. LUBA 626 n 9 Tigard, Or dence. (1992). LUBA considered whether those Accordingly, relationship were sufficient to establish the requisite and the between the of the proposed development impacts i.e., city’s do city’s findings support exactions imposed, stated: action? LUBA establishing greenway
“Petitioners do not contend that manage- for storm water floodplain in the of Fanno Creek pathway and purposes, providing pedestrian/bicycle ment not transportation, alternative means of system as an Further, legitimate petitioners do not chal- public purposes. sufficiency legitimate of the ‘nexus’ between these lenge dedica- requiring public purposes imposed and condition greenway and property for the portions petitioners’ tion of Rather, contention pedestrian/bicycle pathway. petitioners’ Constitutions, Oregon the federal and is that under both develop- proposed relationship impacts between justify are insufficient imposed ment and the exactions without com- of petitioners’ requiring original). (emphasis at 621 Id. pensation.” LUBA concluded: Drainage Plan Master comprehensive view of the
“In of the Fanno Creek for use providing adopted by respondent runoff, and the water of storm management greenway building paved and larger fact undisputed increase will subject property area on the parking into therefore, runoff and, surfaces impervious amount of relation- ‘reasonable is a Creek, we conclude there Fanno require- the proposed between ship’ greenway. for a along Fanno Creek land to dedicate ment “Furthermore, the city has adopted Comprehensive Pedestrian/Bicycle Pathway Plan which provides for a con- tinuous network of pedestrian/bicycle pathways part city’s plans adequate transportation system. The proposed pedestrian/bicycle segment pathway along the greenway subject Fanno Creek on the property is a link in that network. propose significantly to construct a lot, larger building parking retail sales which will accom- larger modate numbers of employees customers and their vehicles. There is a reasonable relationship between alleviating impacts these of the development facilitating the provision of a pedestrian/bicycle as an alterna- *6 tive Id. at 626-27. transportation.” means of LUBA held that the challenged conditions requiring dedica- tion did portions petitioners’ not property constitute unconstitutional Id. taking under the Fifth at Amendment. 627. affirmed, Appeals Court of petitioners’ rejecting in Nollan v. Comm’n, Coastal contention that 483 California 825, 3141,
US 107 S Ct 97 L (1987), Ed 2d 677 the Supreme ‘ ” had Court abandoned the ‘reasonable test a relationship more stringent Dolan v. “essential test. nexus” Tigard, Or supra, 113 at App 166-67.5
On review,6 petitioners argue first that must city meet a standard than a “reasonable higher relationship,” 5 Nollan, permit In the California Coastal conditioned a to the Commission replace plaintiffs bungalow larger a on their lot with a on beachfront house allowing public go beach, easement across their which was located two between public Appeals taking, beaches. The California Court of had found that there was no deprive all because the condition did not the landowners of reasonable use of their Scalia, property. opinion by majority In an Justice that written th eNollan concluded by right designated purposes substantially preserving of the was none advanced public access: quite already impossible requirement people “It is on to understand how a that public any to walk Nollans’ beaches be able across the reduces by impossible It obstacles to view the beach created the new house. is also beaches, any ‘psychological using public
understand how it lowers barrier’ helps remedy any congestion on or how it additional them caused construc- Comm’n, US tion of the Nollans’ new house.” Nollan v. Coastal California (1987). 3141, 838-39, L 107 S 97 Ed 2d 677 Ct 197.850(9), provides: pursuant to ORS We review which affirm, may “The reverse or remand the order. The court shall reverse court remand if it finds: or the order “(a) procedure, be unlawful or but error The order to substance find procedure unless the court shall shall for reversal or remand not cause petitioner prejudiced thereby; rights that were substantial that there must be an “essential nexus” or “substantial between the relationship” impacts otherwise, the dedication exactions requirements; imposing as a condition of land use is an approval unconstitutional Comm’n, on Nollan v. Coastal taking. They rely California that, because has not demon supra7 argue city strated an essential nexus between its exactions and the demands that use will petitioners’ proposed impose facilities, services and substantial requisite relationship and, therefore, that missing imposed exactions on them by city constitute a under the Fifth taking Amendment. As a position, petitioners argue cannot demon fallback strate even a “reasonable relationship” between their devel .8 opment’s impacts city’s exactions
“(b) unconstitutional; The order to be or “(c) supported by The order is not substantial evidence the whole record 197.830(13).” as to the facts found the board under ORS 7 Nollan, Supreme Court stated: determining “Our have not cases elaborated on the standards for what consti- ‘legitimate type tutes a state interest’ what of connection between
regulation
requirement
and the state interest satisfies the
the former
‘substantially
clear, however,
They
advance’ the latter.
have made
broad
range
governmental purposes
regulations
requirements.”
satisfies these
(footnote omitted).
A land-use
does not effect a
property,
meaning
prohi
within the
theof
Fifth Amendment
against taking private property
bition
use without
just compensation,
substantially
legitimate
if it
advances
deny
economically
state interest and does not
an owner
viable
use of the owner’s land. Nollan v.
Coastal
California
supra,
Keystone
Comm’n,
483 US
835-36;
at
Bituminous
Coal
DeBenedictis,
470,
Assn. v.
480 US
495,
1232,
107 S Ct
(1987);Agins City
94 L Ed 2d
260,
Tiburon,
v.
255,
447 US
(1980). Requiring
2138,
100 S Ct
Before the Court’s in Nollan, decision fed- struggled identify precise eral and state courts connec- incorporated tion that exist must between the conditions into regulation governmental regula- interest that the purports regulation tion to further if the is to be deemed to ‘ ’ ‘substantially range advance’ that In interest. the midst of a courts, of tests set forth various the Ninth Circuit Court (9th Appeals Watson, concluded Parks v. 716 F2d 1983), very requiring that, least, Cir at the a condition applicant governmental forego for a benefit to a constitu- right rationally tional is unlawful if the condition is not Byway example, related to the benefit conferred. Parks cases, court discussed “subdivision exaction” where a exchange developer allows a to subdivide contribu- agreement cases, noted, tion. In such the court “there among should have some the states ‘that the dedication relationship to the needs created the subdivi- reasonable ” analysis, exactions Thus, Id. at 653. under the Parks sion.’ “reasonably impacts Parks, must be related.” relationship to had “no rational held that the exactions court *8 might purpose, any physical occur would not be the result invasion that for another acquiescence. Ibid. of forced
119 develop- related to the [impacts any public purpose therefore, that the exactions could not be and, ment]” Id. at just without 653. compensation. Nollan, did not to abandon the purport Court fact, in and, related” test generally recognized “reasonably with the noted that its was “consistent approach approach taken other court that has considered the by every question, US at with the of the California state courts.” 483 exception with Parks cases, 839 list of exaction (citing long beginning Watson, Nollan v. stated: supra). court discussion, the Commis- accept, purposes
“We can ‘reasonably test’] sion’s test as to how [the required, closea ‘fit’between the condition and the burden is we find that this case does not meet even the most because untailored standards.” Id. at 838.
Thus, we are unable to with agree petitioners the Nollan court abandoned the related” test.9 “reasonably that the Nollan court’s however, We recognize, application does some as to how guidance closely test provide “related” exactions must be to For impacts. example, Nollan court stated propriety evident constitutional of an exaction disappears utterly fails prohibition
“if the condition substituted for justification for the to further the end advanced as the prohibition. eliminated, the When that essential nexus is as if California law forbade situation becomes shouting same theater, but granted dispensations fire in a crowded 9 interpreting In Commercial Nollan this manner. We are not alone (9th (1992), 1991), Sacramento, 1997 F2d 872 Cir cert den S Ct Builders v. scrutiny any different level of the Ninth also held tbatNollan did not demand Circuit Watson, supra: than the one it used Parks v. materially matter, persuaded that Nollan a threshold we are not “As scrutiny apply
changes The Nollan Court we must Ordinance. the level specifically ‘how close a “fit” between that it did not have to decide stated * holding required’* that its was *. It also noted condition and the burden is every approach [sic] has considered taken other court ‘consistent with the * * * string cite. question,’ citing the lead case in its Parks as proposition that an agree for the does not stand “We therefore Nollan develop- upheld only be shown that the will where it can ordinance be exaction Rather, holds question. Nollan directly ill in responsible for the social ment is development and the between the no evidence of a nexus that where there is Id., address, upheld.” the exaction cannot seeks to problem that the exaction 941 F2d at 874-75. Id. willing treasury.” contribute to the state $100 those *9 at 837.10 passage indicating as read that that Nollan
Petitioners Supreme “reasonably related” test for Court abandoned stringent “essential nexus” test.11 We do not read a more way. Nollan that quoted passage that, exaction to indicates for an
The “reasonably impact, it is essen related” to an considered two, in order for the tial to regulation a nexus between the show substantially legitimate inter advance a state City supra, required by Agins Tiburon, 447 US at est, as v. of permit Nollan, that, Court stated “unless the 260. In governmental purpose as the devel the same condition serves opment regulation building is not a valid ban, the restriction ” plan of extortion.’ Nollan v. land use but ‘an out-and-out of (citations supra, Comm’n, at 837 483 US Coastal California omitted). an is Nollan, then, tells us that exaction purpose impact if exaction serves the same related to an Dept. permit Trans. v. would serve. See that a denial of the of Lundberg, 113 S Ct 641, P2d cert den 568, 578, 312 Or 825 (1992) (sidewalk requirement the same serves 467 denying justify purposes legitimate governmental that would properties). develop commercially permits zoned city’s unchallenged case, In this we conclude imposed by findings support conditions the dedication factual 10 Nollan, Supreme said: Court pleading Property to be more than Clause view the Fifth Amendment’s “We in cleverness compliance than an exercise requirement, with it to be more earlier, describe the condition imagination. our cases As indicated ‘substantial police power rights through as abridgement particularly inclined to be legitimate We are advancing]’ state interest. property made a conveyance is adjective where the actual about the careful restriction, there is in that context lifting since of a land-use to the condition requirement, compensation purpose is avoidance heightened risk objective.” at 841. police power 483 US than the stated rather (the Council, supra, Fifth L Ed 2d at 813 120 Carolina Coastal Lucas v. So.
See substantially advance regulation does not use when land is violated Amendment land). economically use of viable all denies an owner interests or legitimate state Nollan, although the 11 relationship” not used term “substantial 255, 260, 100 2d Tiburon, 65 L Ed S Ct City Agins v. 447 US did cite Court “substantially advance regulation must (1980), proposition that a for the Nollan, supra, at 834. 483 US interests.” legitimate state city. pedestrian/bicycle pathway condition had an essen- anticipated development tial because, nexus as the part found in use proposed expanded
“the of this site anticipated generate traffic, thereby additional vehicular increasing con- gestion nearby on collector and arterial streets. Creation of a convenient, pedestrian/bicycle system safe transportation alternative means of could offset some of the traffic demand these nearby streets and lessen the congestion.” increase traffic Dolan v. City Tigard, 22 Or LUBA at supra, (quoting Tigard Planning 20). Commission Final Order at persuaded transportation peti- We. are needs of employees tioners’ and customers and the increased traffic congestion development peti- will result from the tioners’ land do have an essential nexus to the *10 reasonably site, the and that condition, therefore, is impact expansion to of the of their business. development covering Because would involve a larger portion petitioners’ buildings much of land with parking, increasing impervious thus the site’s area, the condi- requiring petitioners portion prop- tion a dedicate of their erty improvement system drainage of storm a also impact expansion related to the their of impervious business. The increased surface be would expected to increase the amount of storm water from runoff the site to nexus between the increased storm water runoff caused Fanrio Creek. We hold that there an essential petitioners’ development drainage improvement of a system to accommodate that runoff. agree
We with chal- LUBA’s conclusion peti- lenged requiring portions of condition of taking property of an unconstitutional tioners’ is not petitioners’ property the Fifth Amendment. violation of Appeals of Court of and the order
The decision ofthe
Appeals
the Land Use
of
are affirmed.
Board
dissenting.
PETERSON, J.,
building in
busi-
Petitioners own a commercial
Tigard.
sought permission
replace
They
an
ness district
building.
larger
building
existing
with a
The
imposed
granting
building permit:
a
two conditions to the
petitioners convey
adjacent
one was that
a 15-foot easement
manage-
east
bank
Fanno Creek
“storm water
greenway purposes”;
petitioners
ment and
the other was that
convey
pedestrian/bicycle pathway.
a
8-foot easement for
asserting
appealed,
Fifth
violation
Amendment to
Constitution of the United States.
provides
part
“private
The Fifth Amendment
just
[shall not]
use,
be
without
taken
principally
questions
compensation.”
case
This
involves
majority
federal
states the issue as
law.
follows:
“The issue is whether
has demonstrated the
it
relationship between
conditions that
attached to its
expected
land
approval
petitioners’ proposed
use and the
impacts of that land use.”
Development
those
in the
exactions such as
involved
body
present
years,
Over
of law
case
not unusual.
developed
acting
permits governments,
has
under
police power,
accomplish
things that also
some
could
powers.
accomplished
Roberts,
under their eminent domain
(1986).1
Mining
L
two *11 necessary purpose. must be Second, the exaction problems, the conditions, or created to underlying change burdens address property. landowner’s Nollan ofuse of the 825, 107 3141, 97 S Ct 483 US Comm’n, v. Coastal California (1987). showing requires a that second facet L 2d 677 The Ed If a a for the exaction. recited created need the actually is a excuse for what is an need for taking, exaction invalid. the exaction is University an excellent historical Law Review contains Boston 1A note in the “ Note, v. My Nollan California Beach Please!”: See ‘Take’ of exactions. overview Development Analysis a Constitutional and Rational-Nexus Commission Coastal (1989). 823,
Exactions,
Rev
848-49
69 BUL
place
majority,
proving
the
As does
I
the
burden
government
these two elements on the
that
exacts
condi-
establishing
In
that
need
tions.
for the exactions arises
intensity
government
from an
use,
increased
must
show more
than
theoretical nexus. It must
show
granting
permit probably
problems,
specific
will
of the
create
burdens, or
exist,
conditions that theretofore did not
and that
specific problems,
the exaction will serve to
alleviate
probably
burdens, or conditions that
will arise from the
granting
permit.
general
than
More
statements of
public safety
concern about increased
traffic
support,
permissible regulation,
what otherwise would
taking.
opinion
abe
The Nollan
states:
“We view
Fifth
Amendment’s Property Clause to be
more than a pleading requirement, and
with
compliance
it to
be more than an exercise in
imagination.
cleverness and
As
earlier,
indicated
our cases describe the condition for
abridgement
through
rights
power
the police
as a
advancing]’
legitimate
‘substantial
of a
state interest. We
are inclined
be particularly
adjective
careful about the
where the
conveyance
actual
property made a condition
restriction,
to the
lifting of
land-use
since in that context
there is
risk
heightened
purpose
of the
avoidance
compensation requirement,
rather
than the
police
stated
power objective.”
Here, had two to obtain the city’s first, easements. less from the view, desirable payment was to condemn the easements. That would compensation under either the state or federal constitu- way possible A tion.2 second obtain the easements is making granting granting of them a condition to the of a permit.
I test, am satisfied that the has met the first legitimate pivotal purpose. state the exactions serve — requirement issue is whether the second need for — intensity use the exactions arises from increased been established. has question, For to this the court the answer Constitution, part: I, provides Oregon Article section * ** just use without property shall not be taken “Private * * compensation Oregon court, petitioners make no claim under Constitution. *12 order its should look at to determine whether city’s a need for the ordered fact demonstrate exactions city.3 makes to other repeated The order references city’s that the creation of a contemplate ordinances floodplain sug- The order greenway pedestrian/bicycle pathway. and to to requests such exactions were be attached all gests for For improvements. example: interim standards which
“Code Section 18.86.040 contains to new the CBD-AA developments be addressed for provide pro- are intended to requirements zone. These facility needs of the area. jected transportation and within City may any development attach conditions design plan action following objectives: achieve prior adoption area cir- development pedestrian/bicycle “b. The shall facilitate designed with culation if the site is located on a street adjacent designated greenway/open bike or paths Specific items to be addressed are space/park. follows: efficient, convenient continuous
“i. Provision of bicycle systems, transit circulation pedestrian and dedication linking by requiring developments identi- paths and bike pedestrian construction of * ** in the comprehensive plan. fied general loca- called in this “A bicycle/pedestrian path (Murase and Plans Tigard’s Parks Master City tion in the Associates, 1988) Comprehensive Area 1974). addition, Com- Plan Pathway Pedestrian/Bicycle requires 18.120.180.A.8 munity Code Section Development is allowed within development that where and/or landfill the shall 100-year floodplain, adjacent to adjoin- greenway land area open sufficient adopted with accordance ing floodplain and within site plan. pedestrian/bicycle of Fanno Creek. year floodplain within the 100 includes land support sufficiency of the evidence not do contest findings of fact. “It is a continuous imperative developed efficient, convenient, order for the as an paths function system. Omitting planned and safe for section of the as the would pathway system, approved, variance result in if purposes would conflict with Plan in an result incom- efficient, convenient, system would plete not be or safe. *13 requested The variance therefore would conflict with the City’s adopted providing policy pathway continuous system and general public good intended serve the there- satisfy the fore fails to first variance criterion. approval above, “As noted approval request of the variance would existing have adverse effect on the partially completed pathway system system because a cannot fully function with missing omitted pieces. planned If this section is from the system, system the this pathway in area will be much less convenient and efficient. If pedestrian bicycle and traffic forced City is onto streets at point system this the pathway missing section, because pedestrian bicycle safety and * * * bewill lessened. requires “Code Section 18.120.180.A.8 that where landfill development adjacent is allowed within the 100- and/or year floodplain, require shall the dedication of open land area and greenway adjoining within sufficient floodplain pedestrian/ accordance with the adopted * * * bicycleplan. “* * * noted, already As the code at Section 18.120.080.A.8 18.84.040.A.7) many other related (e.g., sections Section areas, dedication of floodplain not for construc- of pathways, tion but to allow for primarily manage- * * * system. ment of the storm water drainage * * “* In order to accomplish public improvements these Creek, increasing related to Fanno efficiency the flow dedication the area the subject 100-year site within the floodplain and also the adjacent is Not imperative. five feet requiring dedication of this as a of develop- area condition approval, applicant’s requests, ment as the variance proposal clearly would conflict with purposes policies the Com- Plan, Code, prehensive Community Development ’ City’s Drainage City Tigard Planning Master Plan.’ Com- (1991) PC, Final pp (emphasis mission added). Order No. 91-09 9-22 sections show resolve quoted the easements and the for the easements. How- get purpose ever, of the order quoted way sections no establish that are needed of increased necessarily easements because (or else’s) of use of petitioners’ anyone property. intensity omission of the from Unquestionably, any easements floodwater or would “result planned pathway developments is If in an But that beside all incomplete system.” point. that need be shown that easements needed protection evap- the constitutional legitimate public purpose, critical us whether the order orates. The before question it cre- intensity magnitude shows an increased of such ates the need for the exaction of the easements. relate following to increased findings specifically use in with
intensity of connection the pedestrian/bicycle easement: pathway finds that the
“[T]he Commission applicant’s construction are request intensify of this site with *14 use, first, at uses to added general retail sales and other to and later. It is reasonable assume that customers this could utilize a employees of the future uses of site to for pedestrian/bicycle pathway adjacent this fact, the site and recreational needs. transportation in rack in front of the bicycle has for a plan provided parking facility’s for the needs of the building provide to proposed that expect It is reasonable to employees. customers bicycle the parking provided some site the users of the if it is adjacent use to Fanno Creek plan pathway will the 13. constructed.” Id. at sentence of the material is quoted
Whether the first fact, of ultimate it or a legal finding viewed as a conclusion findings are findings of fact. Supporting must be supported with “It is reasonable The sentence lacking. beginning Moreover, it states the finding. not a is speculation, assume” built, were of course customers If a pathway obvious. their transporta- “could utilize pathway] [the employees sentence, the third Concerning recreational needs.” tion and rack bicycle contain a reference fact the plans the use intensity (particularly increased does not establish in this as was require, city ordinances because other in the parking plans). case, bicycle provision city specific findings did make some relevant to pedestrian/bicycle pathway: addition, “In use expanded of this site is antici- pated generate additional vehicular thereby- traffic increasing congestion nearby collector and arterial convenient, streets. Creation safe pedestrian/bicycle pathway as an system alternative means of transportation could offset some of the nearby traffic demand on these streets and lessen the congestion.” increase in traffic Ibid. findings larger
The real issue is whether the that a building being is constructed and the two sentences of the quoted findings support pathway are sufficient to exac- going I tion. portion if maintain that is to, effect, take application of one’s incident to an for a permit develop property, findings arising of need intensity from increased of use must be more direct and more findings bicycle substantial than those. The of fact pathway system “could offset some the traffic demand” is a cry finding bicycle system pathway far from a will, or likely (Emphasis to, offset some of the traffic demand. added.) findings support In essence, the factual pedestrian/bicycle pathway larger exaction are A these: com- building mercial is to be and, result, constructed as a there is anticipated to be “additional vehicular That is not traffic.” enough support taking what amounts to a virtual petitioners’ require findings I would land. that demonstrate intensity requires that the increased use exaction. These do not establish that the exaction any higher intensity needed because of of use. greenway
I turn the flood easement. control support The factual conclusion asserted to exaction reads follows: impervious expected to “The increased surface would be increase the amount of runoff site to storm water from *15 drainage experi- has Fanno Creek. The Fanno Creek basin causing rapid past years enced over the urbanization significant precipita- in stream after periods increase flows storm water from the tion. The increased flow anticipated drainage subject to an creek and already strained property manage to stream public basin can add to the need Because the drainage purposes. floodplain channel and add would to drainage storm development’s need for Fanno Creek management floodplain, public the Commission of dedication of requirement finds area on site is to floodplain applicant’s Id. intensify to on plan the site.” at 21. findings do not such an increased Those establish intensity as to the exaction of flood use control greenway easement. All that these establish is that there will be some increase the amount of storm water requires A runoff from the site. thimbleful? constitution more than that.
Jurisprudence lags times. behind the It is its nature change Today, react, than act. forces of are at rather to challenge “takings” work traditional forces that law, jurisprudence yet has not had time to accommodate. Those increasing single phenomenon: into a forces coalesce interde- among pendence us, us. There are more of live we closer together, increasingly we interconnected. That except, change perhaps, phenomenon going is not accelerate. respect “takings” jurisprudence, two essen-
With tendency emerge. tially opposing The first tendencies gov- legitimacy recognize attempts local state and regulate ways private that once ernments to range person might No has same unthinkable. have been may possible property that he or she once have uses for real may possible many once now had, uses that were because impact palpable others. of their forbidden because governments regularly permissibly by regulation, truth, compensation.4 public private property use without take time, Compensation in constitu- long no Clause “For there has been Just ’ use, it, words, away treated if have been cut from ‘for tional law. Three Compensa- they prescribed Instead of the Just a distinct command their own. Takings engulfed written, and a Clause in confusion have a tion Clause as we nearly complete insignificance. Public Use Clause simply presupposed, most strange on. It is breach is never remarked “This Use Clause’ complain of the ‘Public clearly, about the toothlessness those who story: line it has do with the complaint is an Their old in modern doctrine. requirement public-purpose received its Supreme which the decisions in Court Rubenfeld, Usings, current, LJ 1078-79 102 Yale construction.” broad (footnotes (1993) omitted; emphasis original). *16 — tendency outgrowth The second to some extent an — governments attempt first is that state and local by particular goals placing further limitations on uses of private property property that will be if lifted the owners portion property particular “dedicate” some of their to the government program. temptation, particularly in times place primary revenues, of limited tax funding projects is to burden for private on the shoulders of those whose property happens neighborhood to be in the of the projects, projects any relationship whether or not the bear property property put. or to the uses to which the is benign and, first these tendencies seems even private otherwise, if it were it would be inevitable. Some property rights going increasingly are bend, to have to if our interdependent society progress is to continue to evolve and peacefully. tendency attempt The second is an at licensed recogni- extortion. The trouble what once is, would have been may something turn, time, zable as extortion ered into consid- benign transmogrification because it is so familiar. That encouraged every distinguish time a court cannot whether particular governmental regulation falls within the ambit of tendency, the second rather than the first. involving permits,
In cases exactions attached to hearings held, are taken, evidence is made, are government why development spawns must show findings relating the need for the exaction. The to the need for arising intensity exactions from future increased after use property developed poten- must establish more than a intensity; they tial increase in must establish more than some intensity; they increase in must establish a bona fide need for development. the extraction that arises from the majority Because this law, case turns on federal rely precedents. Why, and I on the same then, federal do we arrive at different law, results? Under current federal if a government procedures local followsthe mandated federal regulation law, can, land, it incident to the of use of take large part ownership rights, long of the owner’s so as there economically private remains v. some feasible use. Lucas So. L US_, 2886, 120 Carolina Coastal 112 S Ct Council, 505 (1992). opinion states, n itself Ed 2d 815 8 As the Lucas percent their of the beneficial use of landowners who lose 95 whereas land- to no compensation, are entitled Ibid. use fully compensated. all beneficial owners who lose it tremendous gives of the government That power improve prop- landowners who seek leverage against adverse effects potential of the profound Because erty. landowners, I the federal read places the substantive rule government high threshold precedents because of the exaction is needed meet in showing must not for a enough landowner. It is land use intensified the latest decision pertinent to read government *17 order and insert its of the United States Court Supreme ‘ ’’ ‘ (such ‘the decision words from the ‘magic to the appli- construction are pathway site”). If in of this intensify cant’s request of a landowner’s to take part needs government fact the developed prop- intensified uses of because of why the need showing precisely burden erty, imposing government. on the place is a modest burden in fact exists in this order. lacking precision Such I convinced case, in this am the order reading From path- a pedestrian/bicycle that it needed decided Fanno along easement flood control greenway and a way cost, is these, by requiring free of way getting Creek. One of their property the use change who propose all owners happened That is what to the city. the easements convey case. any cognizable establish do not here in use. change attributable remediable purpose pedestrian/bicycle relating to conditions are impermissible easements and greenway flood control I dissent. therefore in this case. the record made