Dolan v. City of Tigard

Facts

Petitioner owns a plumbing and electrical supply store on Main Street in Tigard, Oregon. Fanno Creek flows through the southwestern corner of the lot, and the year round flow of the creek places the area within the Fanno Creek 100-year floodplain. The building on the lot is presently 9,700 square feet. Oregon enacted a comprehensive land use management program in 1973. The program required cities in Oregon to adopt comprehensive land use plans, which were consistent with the statewide planning goals. The City of Tigard made its land use law the Community Development Code and required, after a transportation study, new development to facilitate a plan for pedestrian/ bicycle paths by dedicating land for same. Also, Tigard adopted a Master Drainage Plan, which noted that flooding had been a problem in several areas along Fanno Creek, including areas near Petitioner’s property. The Master Drainage Plan found that the increased urbanization had increased impervious areas and that continued urbanization would exacerbate these problems. It suggested a series of improvements in the Fanno Creek Basin, including channel excavation near Petitioner’s property. Other recommendations included ensuring that the floodplain remain free of structures and that it be preserved as greenways. It also found that those who directly benefited, as well as those indirectly benefited should share the cost of these improvements. Petitioner applied to the city for a permit to redevelop her site. The plans were to nearly double the size of the store to 17,600 square feet and paving a 39-space parking lot. The City Planning Commission required that Petitioner dedicate the portion of her property lying with the 100-year flood plain for improvement of a storm drainage system and that Petitioner dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/ bicycle path. Petitioner requested variances. Those were denied. The Commission’s decision was approved by t he Tigard City Council. Petitioner appealed the decision to the Land Use Board of Appeals (LUBA) on the ground that the city’s dedication requirements were not related to the proposed development, and that, therefore, the requirements were a taking within the meaning of the Fifth Amendment. LUBA found a reasonable relationship between the proposed development and the requirements imposed. The Court of Appeals of Oregon and the Supreme Court of Oregon affirmed. Petitioner appealed.