Dolan v. City of Tigard
The Supreme Court ruled that the city of Tigard could not require a hardware-store owner to dedicate part of her land for a public greenway and bike path unless it could show the demand was roughly proportional to the actual impact of her proposed store expansion.
The decision creates a new, tougher standard-called 'rough proportionality'-for evaluating conditions cities attach to building permits, giving property owners a real check on how far local governments can go before those conditions cross into an uncompensated taking of property.
“No precise mathematical calculation is required, but the 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.”
The majority's articulation of the new 'rough proportionality' standard for permit conditions.
How it got here: Oregon's land use board and courts upheld the city's permit conditions; the Oregon Supreme Court affirmed, and the store owner asked the U.S. Supreme Court to review the takings question.
The Case in Depth
What happened
Florence Dolan owned a plumbing and electric supply store in Tigard, Oregon, and sought a permit to nearly double her store's size and pave a larger parking lot. The city agreed, but only if she dedicated roughly 10% of her property-land within a flood-prone creek's floodplain plus an adjoining strip-for a public greenway and a pedestrian/bicycle pathway, citing flood control and traffic congestion concerns.
The question before the Court
Could a city force a store owner to hand over part of her land for a public greenway and bike path as the price of a building permit, without showing the demand really matched the harm her project would cause?
Why it matters
Local governments across the country routinely require developers to dedicate land or pay fees as a condition of building permits. This ruling means cities must now show concrete, individualized proof that what they demand roughly matches the harm a project would cause, giving property owners a stronger tool to challenge permit conditions they consider excessive.
What changes now
The Oregon Supreme Court's ruling is undone, and the case goes back to the state courts to be reconsidered under the Supreme Court's new 'rough proportionality' standard. This is a final merits decision that sets a nationwide constitutional test for permit conditions, though it does not itself resolve whether some narrower version of the floodplain or bike-path dedication might still satisfy that test on remand.
What this does not decide
The Court did not decide whether Dolan's variance request could have succeeded had she proposed alternative mitigation measures, and it left open whether a narrower dedication requirement might satisfy the new proportionality test. It also did not rule on the city's variance procedures generally.
Concurrences and dissents
Dissent — Justice Stevens
“The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan.”Stevens's core objection that the majority improperly shifted the burden of proof onto the city.
Justice Stevens argued the majority wrongly abandoned the traditional presumption that land-use regulations are constitutional and improperly shifted the burden of proof onto the city. He viewed the exactions as ordinary business regulation deserving deference, criticized the 'rough proportionality' test as unsupported by the state cases the majority cited, and warned the decision revives Lochner-era substantive due process scrutiny of economic regulation.
Dissent — Justice Souter
Justice Souter argued the majority's own analysis shows this case never actually presented the 'degree of connection' question it purported to resolve, because the real defects it found (the public recreational easement, the 'could' versus 'would' language on the bike path) were just applications of Nollan's existing nexus test. He would have found the city's conditions satisfied Nollan already and saw no need to announce a new proportionality doctrine here.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether an 'essential nexus'-a real logical connection-existed between the city's legitimate interests (flood control, traffic reduction) and the permit conditions, the test set out in the earlier Nollan case. It found that nexus was easily satisfied here because a bigger store and paved lot would increase runoff and traffic.
- Because a nexus existed, the Court had to decide a question left open by Nollan: how closely the extent of the demanded dedication must match the actual impact of the development. The Court surveyed state courts, which used approaches ranging from a very loose 'generalized statement' standard to a strict 'specifically and uniquely attributable' standard, and a middle-ground 'reasonable relationship' test.
- The Court adopted a new standard it called 'rough proportionality': no precise mathematical calculation is required, but the city must make an individualized finding that the required dedication is related both in nature and extent to the specific impact of the proposed development.
- Applying that standard to the floodplain dedication, the Court found the city could show a need to keep the floodplain undeveloped, but not why the land had to be handed over to the public rather than simply kept open by the owner, since public access would strip away her right to exclude others without an individualized justification.
- Applying the standard to the bike path, the Court found the city had shown increased traffic from the bigger store but had only said the pathway 'could' offset some of that traffic, not that it would-falling short of the individualized, quantified showing rough proportionality requires.
Doctrinal impact
Cases affected by this decision
Limits Nollan v. California Coastal Comm'n (483 U.S. 825)
The Court builds on Nollan's nexus test but adds a new proportionality requirement Nollan had left open.