DOLAN v. CITY OF TIGARD 512 U.S. 374 (1994)

Governments often require landowners to satisfy conditions before issuing building permits. Under the Supreme Court's opinion in Nollan v. California Coastal Commission (1987), landowners can challenge such conditions as violating the Fifth Amendment's takings clause when they lack an "essential nexus" to the harms of development.

Dolan sought permission from the City of Tigard, Oregon to expand her retail hardware business, which was partially situated on a floodplain. The Planning Commission conditioned its approval on Dolan's agreeing to dedicate both her land within the floodplain to improve the city's flood control system and an additional 15-foot strip for a pedestrian/bicycle pathway. The Court held, 5–4, that these conditions constituted a taking of property.

The majority opinion, authored by Chief Justice william h. rehnquist, found that the "essential nexus" test of Nollan was met. But this was not enough. An exaction should also bear a "rough proportionality" to the corresponding harm. "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." Finding no such "individualized determination" in the case, the Court found an unconstitutional takings instead.

In dissent, Justice john paul stevens criticized the Court for resurrecting heightened judicial review of regulations similar to Lochner -era substantive due process jurisprudence. He argued that the uncertainty of assessing environmental harms should justify deference to legislative processes where the government can demonstrate rationality and impartiality of its conditions. Justice david h. souter wrote a separate dissent, in which he argued that proportionality ought to be considered part of the "essential nexus" test of Nollan.

Edward J. McCaffery
(2000)