DeMartini debate similar to Dolan case
By Bonnie McGuire
March 1, 2007
We attended the Grass Valley City Council meeting regarding the approval of DeMartini’s lot near Railroad Avenue and Wolf Creek. The negative response came from people who want the property owner to donate a portion of the land for the Wolf Creek walkway. The Grass Valley City Council made the donation part of its terms for giving the owner a permit. It reminded me of the landmark Supreme Court case, Dolan vs. the City of Tigard, in 1994.
Florence Dolan applied for a permit to expand the family’s plumbing and electric supply store, located in the business district of the city of Tigard. The city planners said it would grant a development permit on two conditions. First, the Dolans would have to donate part of the property along Fanno Creek to preserve the land as a greenway to minimize flood damage. Second, they would have to donate an additional 8-foot strip of land adjacent to the flood plain as a bicycle/pedestrian pathway. The city claimed that the Dolans’ enlarged business would exacerbate traffic congestion in the central business district. The bicycle pathway would offset some of the traffic.
After exhausting remedies, Mrs. Dolan sought relief in the courts. Her attorney argued that the city’s donation requirements constituted an uncompensated taking of property, since they weren’t related to the proposed development. The city of Tigard planned the construction of a citywide flood-plain greenway and bicycle/pedestrian pathway. Dolan argued that the city planned to use its permit and zoning powers to force certain landowners to pay for the public improvements in a piecemeal fashion. The case worked its way up to the Oregon Supreme Court, which ruled in favor of the city. The U.S. Supreme Court agreed to hear the case.
Chief Justice Rehnquist’s legal analysis of the Dolan case noted that if the city had simply seized the Dolan property for the purpose of building a bicycle/pedestrian pathway, the Fifth Amendment would have clearly required “just compensation” for the land taken. Rehnquist also observed that the court has long recognized the authority of state and local governments to “exact some forms of dedication as a condition for the grant of a building permit.” In residential neighborhoods, a strip of land is often required for sidewalks, etc.
The question with Dolan was whether the city of Tigard was using its permit power for legitimate land-use planning or whether it was engaged in “extortion.” Eventually a settlement was reached, and the city had to pay $1.4 million for the property it took from the Dolans, plus another $100,000 in attorney fees, and grant the Dolan family a permit to build a new store.
Some bureaucrats use planning as an excuse for extortion. The Dolan court pronounced the following rule: Municipalities must demonstrate a reasonable relationship or “rough proportionality” between the projected impact of the proposed development and the required dedication. The Dolan ruling is important for two reasons.
First, the court placed the burden of proof on the government’s proposed land dedications, like it requires police officers to justify searches under the Fourth Amendment and FCC officials to justify restrictions upon free speech. This burden is consistent with the premises of our Constitutional government.
Second, the court considered, and rejected, the “rational basis” standard of review for regulatory decisions respecting land use because it increased the power of local bureaucracies to where only the most outrageous land-use restrictions would merit attention of the courts.
The court said, “Municipalities should not be able to avoid the Fifth Amendment’s just compensation requirement on the basis of facile findings and conclusory assessments of planned development.” The “rough proportionality” standard requires cities to make “an individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”
The rough proportionality test in Dolan found that the city had not met its burden of proof. The private greenway for flood control would be as effective as a public greenway. The city failed to carry its burden concerning the bicycle pathway and had to do more than speculate about the increase in traffic.
The chief justice wrote: “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.” Interesting, since most of those who opposed the Dolans’ property rights were environmentalists using their First Amendment right to free speech.
(Published in the Union Newspaper)
Commentary on the May 2007 Planning Commission meeting.