Constitutional Law Keyed to Cohen
Dolan v. City of Tigard
ProfessorTodd Berman
CaseCast™ – "What you need to know"
Facts
Dolan owned a plumbing and electric supply store in the Central Business District. She wanted to double the size of the store and create more parking. Her plans were consistent with the city’s zoning scheme. The City granted the permit application subject to her dedicating the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along the creek and she would dedicate an additional 15-foot strip of land adjacent to the floodplain for a pedestrian/bicycle pathway. This would be 10% of her property. She could use that to meet the 15% open space requirement. The owner of a store wanted to expand. The city said that the owner could expand but the owner would need to deed to the public a 15-foot strip of land that would be used as a bike path. Dolan applied for variances because she argued that her proposed development would not conflict with the policies of the comprehensive plan. The City Planning Commission denied her request. Th e Commission’s decision was approved by the 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 Oregon Court of Appeals and the Oregon Supreme Court affirmed. Petitioner appealed.
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