WOODLAND APPEAL REPLY 12-7-2020 from Paul BardosTO: Council Members, City of Kalispell
FROM: Woodland Apartments, LLC
SUBJECT: Woodland Appeal of Site Review Committee Determination
DATE: December 7, 2020
APPLICANT/APPELLANT WOODLAND APARTMENT'S REPLY TO STAFF
REPORT
Staff together with the City Attorney's office have expended considerable effort to
demonstrate to the Council that numerous local regulations and standards give it an authority to
take private lands from Woodland to widen both Shady Glen and Woodland Park Drive without
just compensation. Counsel advises in his written response to Woodland's appeal that the
dedications were necessary "in order to fit the necessary public in improvement
upgrades called out by the Kalispell Design and Construction Standards within the right-of-way,
approximately 2.5 feet along Shady Glen and a triangle containing approximately 135 square
feet in the northwest corner of the property along Woodland Park Drive" and that "Dedication
requirements for public infrastructure along and serving a private development are not
unusual." Counsel continues to describe that city standards were applicable to the project to
assuage neighbors' concerns about increased traffic as well as for the safety of the pedestrians.
Counsel for the City further state: "The conditions recommended by the city staff were to require
com liance with the City's approved Design and Construction Standards which includes
upgrading sidewalks, curb and gutter, sheet gees and boulevard adjacent the applicant's
property. The City has adopted a Transportation Plan through a public process that included
the full consideration and actions of the City Council. "1 It is Woodland's position that these
calculations are demonstrably the proverbial "cart before the horse" as will be explained further
in this reply.
The remainder of the comments prepared for the Council by other staff members for the
appeal will not be addressed here and only at the appeal hearing if necessary as they are not
relevant to the threshold question that has been put forth by the City Attorney in its third item:
"Is the required dedication of applicant's land related both in nature and extent to the impact of
the proposed development? " the measure for which was determined by the US Supreme Court
1 The City Attorney's office has sufficiently argued, and Woodland stipulates to and provides its agreement here
with the simple fact the standards and regulations were lawfully passed and exist on the books of the City of
Kalispell. Therefore the point that the Council has adopted numerous construction and design standards makes
both the summaries by PJ Sorenson and Public Works Department that reiterate these same matters redundant;
except that, in addition, PJ Sorenson and Public Works have included several exhibits detailing the required
roadway widths, cross sections, and excerpts from the City's Transportation Plan, Zoning Ordinance, and CK
Subdivision Regulations among others that the City Attorney does not. The City's standards and regulations are
hereby incorporated into this appeal by reference. Finally, both PJ Sorenson and Public Works add further that
several deviations were granted to the applicant "to minimize any potential impact on the site design which may
have occurred with the right-of-way dedication."
Page 1 of 4
decision in Dolan v. City of Tigard— 512 U.S. 374, 114 S. Ct. 2309 (1994).2TheDolancase,
upon which both the appellant/applicant Woodland and the City Attorney agree, is determinative
of the issues on appeal by Woodland and are currently squarely before the Council in this appeal.
It is also therefore the case that none of the further criteria elaborated upon above and beyond by
the City Attorney, PJ Sorenson, or Public Works regarding application of City Standards or
regulations are therefore relevant and precedent to a determination of the "rough
proportionality" test that the Court has made law in its Dolan opinion pursuant to the 5th
Amendment of the US Constitution.
Dolan v. City of Tigard - 512 U.S. 374,114 S. Ct. 2309 (1994)3
It is important to note that the City of Tigard argued many if not all of the same points that
are being raised in the City Attorney's reply to the Woodland appeal. The City of Tigard has
similar standards and regulations as staff has described in its reply to the Woodland appeal to
include traffic plans and police powers that exist similarly here in the City of Kalispell. Yet
despite these similar regulations, standards, and police powers the high court denied the taking of
private property from Dolan by the City of Tigard without just compensation on the basis of
regulatory authority and its police powers alone. These were insufficient to justify a taking.
Instead the High Court concluded that there must be a "rough proportionality " between the
impacts from the project and the dedication being required and that "the city must make some
sort of individualized determination that the required dedication is related both in nature and
extent to the proposed development's impact. "
Here in Woodland's findings of facts and approvals by the Council have determined an
unequivocal finding that "The apartments will not have a significant impact on the traffic
generated in the area. It is anticipated that each unit will produce approximately 9.57 trip
ends/day (Per ITE trip generation model). The nine units would generate approximately 86 trips
per day cumulatively. The width and quality ofShady Glen Drive and Woodland Park Drive
are more than adequate to handle the additional traffic load. " [Emphasis added]
Although the City Attorney does admit to the adoption of the staff report as a finding by the
Council it then moves to circumspectly describe those findings by the Council in its reply
inconclusively as:
"The City Council adopted the staff report as its findings of fact. The conditions included
in the Conditional Use Permit that it issued were also consistent with the conditions
recommended in the staff report, as amended by the Planning Board (added shielding to trash
receptacles). The basis for the applicant's appeal to the Site Review Committee's disallowing the
reference to the condemnation of his property by the City is his own legal conclusion that the
2 The Dolan case preempts any authority for a taking prior to an individualized determination of the nature and
extent of impacts from the project on the community that warrant a dedication.
3 A full copy of the Court's opinion is attached to this reply for ease of reference by the Council
4 Although perhaps under the litigation privilege such comments might be allowed, however in a public forum as
exists here these types of ad hominem attacks are contrary to the Council's mandate that its hearings shall be a
place for the free and open exchange of ideas. The Council is asked to disregard the statement and consider the
facts and law at play in this appeal only.
Page 2of4
dedication of a portion of his propertyfor public infrastructure is inconsistent with the City
Council's findings that the conditional use he was requesting was otherwise appropriate. Such a
conclusion ignores the many findings and actions of the City Council in the development and
approval of its design and construction standards and transportation plan. As there was no
specific evidence ever presented to the City Council that would recommend that its design and
construction standards and transportation plan should not be applied to this specific
development, the Conditional Use Permit was consistent with the Council's findings. "
Here again the persistent argument by staff is that enactment of City Standards and
Regulations alone are sufficient to justify a taking contrary to the bright line rule established by
the Court's decision in Dolan. As there has not been a showing by the City of a relationship
between the nature and extent of the proposed development's impact on traffic — when in fact the
finding by the Council was that the opposite was true — it is problematic that a taking is
justifiable under the findings made by the Council in the Woodland approvals. Staff also appears
to represent that a quid pro quo has taken place between Woodland and the City through the
granting of deviations in exchange for dedication of additional roadway. No such agreement was
ever presented to or considered by Woodland during the submittal process nor approved by it in
any way. The deviations were granted in the normal course of the approval process as occurs
typically in such cases given the circumstances and factors involved with Woodland and others.
Furthermore, the City has also shown that it knows how to require rather than infer the
application of standards on a project as is currently being argued in the Woodland approvals of
the Council's findings in its CUP application. Compare for instance the CUP conditions of
approval of the Husky Bros, Glenwood Apartments, wherein condition 8 of the approvals states
as follows:
"S. Financial Drive shall be improved to city standards along the length of the property's frontage. The
developer shall submit the street design to the Kalispell Public Works Department for review and
approval prior to construction. Street designs shall meet the city standards for design and construction,
and would include, but not necessarily be limited to, sidewalk, boulevard, street trees, and street lights.
Improving the street to city standards may involve dedicating right-of-way to the city or modifying Ire -
centering the road in the right-of-way to provide a standard street section. The applicant will need to
work with Public Works to ensure a design which provides the required improvements. "5
Here the City makes explicit reference to street widening as a condition of approval instead
of inferring the requirement as is occurring with Woodland when traffic studies for the
Glenwood Apartments demonstrated traffic impacts on adjacent roadways would exist. This is
contrary to the implied requirements being placed upon Woodland when the opposite findings
were made at public hearing.
In conclusion, the City has not met the burden to demonstrate Woodland's requirement to
dedicate is "related both in nature and extent to the proposed development's impact " as the
SCOTUS requires. In fact the opposite has been determined through public hearing and
testimony. It is for these and other reasons that will be further elaborated upon at the time of the
5 A full copy of the conditions of approval of the Glenwood Apartments is attached to this reply for further
reference by the Council in its review of this appeal.
Page 3of4
hearing that Woodland does not concede to an obligation to both widen and remove and replace
Shady Glen to the centerline along the entire length of the frontage of the property. Both the
taking of private property and the removal and replacement of Shady Glen are contrary to the
findings by the Council during public hearing.6
Should the City wish to pursue its interests in developing Shady Glen and Woodland Park
Drive there is an appropriate legal vehicle available to it but that would require it to pursue legal
remedies such as inverse condemnation or eminent domain proceedings and justly compensate
Woodland for the taking.
6 Although Woodland raises the issue on appeal that a portion of its property is located outside the city and in the
County are and therefore local regulations should not apply, Counsel has not yet responded to these points
directly.
Page 4of4
RESOLUTION NO.5998
A RESOLUTION CONDITIONALLY APPROVING THE PRELIMINARY PLAT OF
GLENWOOD WEST PHASE 2, DESCRIBED AS LOT 1 OF GLENWOOD NEST, AS
SHOWN ON THE MAP OR PLAT THEREOF ON FILE AND OF RECORD IN THE
OFFICE OF THE CLERK AND RECORDER, FLATHEAD COUNTY, MONTANA,
WHEREAS, Husky Partners, LLC, the owner of the certain real property described above, has
petitioned for approval of the Subdivision Plat of said property; and
WHEREAS, the Kalispell City Planning Board and Zoning Commission held a public hearing on
August 11, 2020 on the proposal and reviewed Subdivision Report 4KPP-20-02
issued by the Kalispell Planning Department; and
WHEREAS, the Kalispell City Planning Board and Zoning Commission has recommended
approval of the Preliminary Plat of Glenwood West Phase 2 subject to certain
conditions and recommendations; and
WHEREAS, the city council of the City of Kalispell at its regular council meeting of September S,
2020, reviewed the Kalispell Planning Department Report 4KPP-20-02, reviewed the
recommendations of the Kalispell City Planning Board and Zoning Commission, and
found from the Preliminary Plat, and evidence, that the subdivision is in the public
interest.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, MONTANA AS FOLLOWS:
SECTION 1. That the Findings of Fact contained in Kalispell Planning Department Report
4KPP-20-02 are hereby adopted as the Findings of Fact of the city council.
SECTION 2. That the application of Husky Partners, LLC for approval of the Preliminary
Plat of Glenwood West Phase 2, Kalispell, Flathead County, Montana is
hereby approved subject to the following conditions:
1. The development of the site shall be in substantial compliance with the application
submitted, the site plan, materials, and other specifications as well as any additional
conditions associated with the preliminary plat as approved by the city council.
2. The preliminary plat approval shall be valid for a period of three years from the date of
approval.
3. The developer shall submit to the Kalispell Public Works Department for review and
approval a storm water report and an engineered drainage plan that meets the requirements
of the current city standards for design and construction. Prior to final plat, a certification
shall be submitted to the public works department stating that the drainage plan for the
subdivision has been installed as designed and approved.
4. The developer shall submit to the Kalispell Public Works Department prior to
construction an erosion/sediment control plan for review and approval and a copy of all
documents submitted to Montana Department of Environmental Quality for the General
Permit for Storm Water Discharge Associated with Construction Activities.
5. The developer shall submit water and sanitary sewer plans, applicable specifications, and
design reports to the Kalispell Public Works Department and the Montana Department of
Environmental Quality for concurrent review, with approval of both required prior to
construction.
6. The applicant shall install a water main extension in Financial Drive to connect the main in
Two Mile Drive to the main to the south. The water system for the subdivision will be
reviewed and approved by the Kalispell Public Works Department as part of the
development of the subdivision.
7. The applicant shall install a sanitary sewer main in Financial Drive to connect the main in
Two Mile Drive to the development. The sewer system for the subdivision will be
reviewed and approved by the Kalispell Public Works Department as part of the
development of the subdivision.
S. Financial Drive shall be improved to city standards along the length of the property's
frontage. The developer shall submit the street design to the Kalispell Public Works
Department for review and approval prior to construction. Street designs shall meet the
city standards for design and construction, and would include, but not necessarily be
limited to, sidewalk, boulevard, street trees, and street lights. Improving the street to city
standards may involve dedicating right-of-way to the city or modifying /re -centering the
road in the right-of-way to provide a standard street section. The applicant will need to
work with Public Works to ensure a design which provides the required improvements.
9. A final Traffic Impact Study shall be submitted to Public Works prior to final plat. Any
improvements recommended by the TIS would need to be installed by the applicant.
SECTION 3. Upon proper review and filing of the Final Plat of said subdivision in the
office of the Flathead County Clerk and Recorder, said premises shall be a
subdivision of the City of Kalispell.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL THIS STH DAY OF SEPTEMBER, 2020.
ATTEST:
Aimee Brunckhorst, CMC
City Clerk
Mark Johnson
Mayor
374 OCTOBER TERM, 1993
Syllabus
DOLAN v. CITY OF TIGARD
CERTIORARI TO THE SUPREME COURT OF OREGON
No. 93-518. Argued March 23, 1994—Decided June 24, 1994
The City Planning Commission of respondent city conditioned approval of
petitioner Dolan's application to expand her store and pave her parking
lot upon her compliance with dedication of land (1) for a public greenway
along Fanno Creek to minimize flooding that would be exacerbated by
the increases in impervious surfaces associated with her development
and (2) for a pedestrian/bicycle pathway intended to relieve traffic con-
gestion in the city's Central Business District. She appealed the com-
mission's denial of her request for variances from these standards to the
Land Use Board of Appeals (LUBA), alleging that the land dedication
requirements were not related to the proposed development and there-
fore constituted an uncompensated taking of her property under the
Fifth Amendment. LUBA found a reasonable relationship between (1)
the development and the requirement to dedicate land for a greenway,
since the larger building and paved lot would increase the impervious
surfaces and thus the runoff into the creek, and (2) alleviating the im-
pact of increased traffic from the development and facilitating the provi-
sion of a pathway as an alternative means of transportation. Both the
Oregon Court of Appeals and the Oregon Supreme Court affirmed.
Held: The city's dedication requirements constitute an uncompensated
taking of property. Pp. 383-396.
(a) Under the well -settled doctrine of "unconstitutional conditions,"
the government may not require a person to give up a constitutional
right in exchange for a discretionary benefit conferred by the govern-
ment where the property sought has little or no relationship to the bene-
fit. In evaluating Dolan's claim, it must be determined whether an "es-
sential nexus" exists between a legitimate state interest and the permit
condition. Nollan v. California Coastal Comm'n, 483 U. S. 825, 837.
If one does, then it must be decided whether the degree of the exac-
tions demanded by the permit conditions bears the required relationship
to the projected impact of the proposed development. Id., at 834.
Pp. 383-386.
(b) Preventing flooding along Fanno Creek and reducing traffic con-
gestion in the district are legitimate public purposes; and a nexus exists
between the first purpose and limiting development within the creek's
Cite as: 512 U. S. 374 (1994) 375
Syllabus
floodplain and between the second purpose and providing for alternative
means of transportation. Pp. 386-388.
(c) In deciding the second question —whether the city's findings are
constitutionally sufficient to justify the conditions imposed on Dolan's
permit —the necessary connection required by the Fifth Amendment is
"rough proportionality." No precise mathematical calculation is re-
quired, but the city must make some sort of individualized determina-
tion that the required dedication is related both in nature and extent
to the proposed development's impact. This is essentially the "reason-
able relationship" test adopted by the majority of the state courts.
Pp. 388-391.
(d) The findings upon which the city relies do not show the required
reasonable relationship between the floodplain easement and Dolan's
proposed building. The Community Development Code already re-
quired that Dolan leave 15% of her property as open space, and the
undeveloped floodplain would have nearly satisfied that requirement.
However, the city has never said why a public, as opposed to a private,
greenway is required in the interest of flood control. The difference to
Dolan is the loss of her ability to exclude others from her property, yet
the city has not attempted to make any individualized determination to
support this part of its request. The city has also not met its burden
of demonstrating that the additional number of vehicle and bicycle trips
generated by Dolan's development reasonably relates to the city's re-
quirement for a dedication of the pathway easement. The city must
quantify its finding beyond a conclusory statement that the dedication
could offset some of the traffic demand generated by the development.
Pp. 392-396.
317 Ore. 110, 854 P. 2d 437, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which O'CON-
NOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which BLACKMUN and GINSBURG, JJ., joined, post,
p. 396. SOUTER, J., filed a dissenting opinion, post, p. 411.
David B. Smith argued the cause and filed briefs for
petitioner.
Timothy V. Ramis argued the cause for respondent.
With him on the brief were James M. Coleman and Richard
J. Lazarus.
376 DOLAN v. CITY OF TIGARD
Counsel
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging affirmance.
With him on the brief were Solicitor General Days, Acting►
Assistant Attorney General Schiffer, James E. Brookshire,
and Martin W. Matzen.
*Briefs of amici curiae urging reversal were filed for the American
Farm Bureau Federation et al. by James D. Holzhauer, Timothy S.
Bishop, John J. Rademacher, and Richard L. Krause; for Defenders of
Property Rights et al. by Nancie G. Marzulla; for the Georgia Public
Policy Foundation et al. by G. Stephen Parker; for the Institute for Justice
by William H. Mellor III, Clint Bolick, and Richard A. Epstein; for the
National Association of Home Builders et al. by William H. Ethier, Mary
DiCrescenzo, and Stephanie McEvily; for the National Association of
Realtors et al. by Richard M. Stephens; for the Pacific Legal Foundation
by Ronald A. Zumbrun, Robin L. Rivett, James S. Burling, Deborah J.
La Fetra, and John M. Groen; for the Washington Legal Foundation et al.
by Daniel J. Popeo and Paul D. Kamenar; for Jon A. Chandler, pro se;
and for Terence Wellner et al. by Daniel G. Marsh.
Briefs of amici curiae urging affirmance were filed for the State of New
Jersey et al. by Deborah T. Poritz, Attorney General of New Jersey, Jack
M. Sabatino and Mary Carol Jacobson, Assistant Attorneys General, and
Rachel J. Horowitz, Deputy Attorney General, and by the Attorneys Gen-
eral for their respective jurisdictions as follows: Grant Woods of Arizona,
Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida,
Elizabeth Barrett -Anderson of Guam, Robert A. Marks of Hawaii, Mi-
chael E. Carpenter of Maine, Scott Harshbarger of Massachusetts, Frank
J. Kelley of Michigan, Joseph P. Mazurek of Montana, Frankie Sue Del
Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of New
York, Lee Fisher of Ohio, Jeffrey B. Pine of Rhode Island, Charles W.
Burson of Tennessee, Rosalie S. Ballentine of the Virgin Islands, and
Joseph B. Meyer of Wyoming; for the State of Oregon by Theodore R.
Kulongoski, Attorney General, Thomas A. Balmer, Deputy Attorney Gen-
eral, Virginia L. Linder, Solicitor General, and Michael D. Reynolds and
John T. Bagg, Assistant Attorneys General; for Broward County by John
J. Copelan, Jr., and Anthony C. Musto; for the City of New York by Paul
A. Crotty, Leonard J. Koerner, and Linda H. Young; for the American
Federation of Labor and Congress of Industrial Organizations by Robert
M. Weinberg, Walter Kamiat, and Laurence Gold; for the Association of
State Floodplan Managers by Michael J. Bean; for the Rails -to -Trails Con-
servancy et al. by Andrea C. Fenster, Daniel L. Rabinowitz, and Glenn P.
Sugameli; for the National Association of Counties et al. by Richard
Ruda, Lee Fennell, and Barbara E. Etkind; for the National Audubon
Cite as: 512 U. S. 374 (1994) 377
Opinion of the Court
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioner challenges the decision of the Oregon Supreme
Court which held that the city of Tigard could condition the
approval of her building permit on the dedication of a portion
of her property for flood control and traffic improvements.
317 Ore. 110, 854 P. 2d 437 (1993). We granted certiorari
to resolve a question left open by our decision in Nollan v.
California Coastal Comm'n, 483 U. S. 825 (1987), of what
is the required degree of connection between the exactions
imposed by the city and the projected impacts of the pro-
posed development.
The State of Oregon enacted a comprehensive land use
management program in 1973. Ore. Rev. Stat. H 197.005-
197.860 (1991). The program required all Oregon cities
and counties to adopt new comprehensive land use plans
that were consistent with the statewide planning goals.
H 197.175(1), 197.250. The plans are implemented by land
use regulations which are part of an integrated hierarchy
of legally binding goals, plans, and regulations. H 197.175,
197.175(2)(b). Pursuant to the State's requirements, the city
of Tigard, a community of some 30,000 residents on the
southwest edge of Portland, developed a comprehensive plan
and codified it in its Community Development Code (CDC).
The CDC requires property owners in the area zoned Cen-
tral Business District to comply with a 15% open space and
landscaping requirement, which limits total site coverage, in-
cluding all structures and paved parking, to 85% of the par-
cel. CDC, ch. 18.66, App. to Pet. for Cert. G-16 to G-17.
After the completion of a transportation study that identified
Society by John D. Echeverria; and for 1000 Friends of Oregon et al. by
H. Bissell Carey III, Dwight H. Merriam, and Edward J. Sullivan.
Briefs of amici curiae were filed for the Mountain States Legal Founda-
tion et al. by William Perry Pendley; for the Northwest Legal Foundation
by Jeanette R. Burrage; and for Thomas H. Nelson, pro se, et al.
378 DOLAN v. CITY OF TIGARD
Opinion of the Court
congestion in the Central Business District as a particular
problem, the city adopted a plan for a pedestrian/ bicycle
pathway intended to encourage alternatives to automobile
transportation for short trips. The CDC requires that new
development facilitate this plan by dedicating land for pedes-
trian pathways where provided for in the pedestrian/ bicycle
pathway plan.'
The city also adopted a Master Drainage Plan (Drainage
Plan). The Drainage Plan noted that flooding occurred in
several areas along Fanno Creek, including areas near peti-
tioner's property. Record, Doc. No. F, ch. 2, pp. 2-5 to 2-8;
4-2 to 4-6; Figure 4-1. The Drainage Plan also established
that the increase in impervious surfaces associated with con-
tinued urbanization would exacerbate these flooding prob-
lems. To combat these risks, the Drainage Plan suggested a
series of improvements to the Fanno Creek Basin, including
channel excavation in the area next to petitioner's property.
App. to Pet. for Cert. G-13, G-38. Other recommendations
included ensuring that the floodplain remains free of struc-
tures and that it be preserved as greenways to minimize
flood damage to structures. Record, Doc. No. F, ch. 5,
pp. 5-16 to 5-21. The Drainage Plan concluded that the cost
of these improvements should be shared based on both direct
and indirect benefits, with property owners along the water-
ways paying more due to the direct benefit that they would
receive. Id., ch. 8, p. 8-11. CDC Chapters 18.84 and 18.86
1 CDC § 18.86.040.A.1.b provides: "The development shall facilitate
pedestrian/bicycle circulation if the site is located on a street with desig-
nated bikepaths or adjacent to a designated greenway/open space/park.
Specific items to be addressed [include]: (i) Provision of efficient, conven-
ient and continuous pedestrian and bicycle transit circulation systems,
linking developments by requiring dedication and construction of pedes-
trian and bikepaths identified in the comprehensive plan. If direct con-
nections cannot be made, require that funds in the amount of the construc-
tion cost be deposited into an account for the purpose of constructing
paths." App. to Brief for Respondent B-33 to B-34.
Cite as: 512 U. S. 374 (1994) 379
Opinion of the Court
and CDC § 18.164.100 and the Tigard Park Plan carry out
these recommendations.
Petitioner Florence Dolan owns a plumbing and electric
supply store located on Main Street in the Central Business
District of the city. The store covers approximately 9,700
square feet on the eastern side of a 1.67-acre parcel, which
includes a gravel parking lot. Fanno Creek flows through
the southwestern corner of the lot and along its western
boundary. The year-round flow of the creek renders the
area within the creek's 100-year floodplain virtually unusable
for commercial development. The city's comprehensive plan
includes the Fanno Creek floodplain as part of the city's
greenway system.
Petitioner applied to the city for a permit to redevelop the
site. Her proposed plans called for nearly doubling the size
of the store to 17,600 square feet and paving a 39-space park-
ing lot. The existing store, located on the opposite side of
the parcel, would be razed in sections as construction pro-
gressed on the new building. In the second phase of the
project, petitioner proposed to build an additional structure
on the northeast side of the site for complementary busi-
nesses and to provide more parking. The proposed expan-
sion and intensified use are consistent with the city's zoning
scheme in the Central Business District. CDC § 18.66.030,
App. to Brief for Petitioner C-1 to C-3.
The City Planning Commission (Commission) granted peti-
tioner's permit application subject to conditions imposed by
the city's CDC. The CDC establishes the following stand-
ard for site development review approval:
"Where landfill and/or development is allowed within
and adjacent to the 100-year floodplain, the City shall
require the dedication of sufficient open land area for
greenway adjoining and within the floodplain. This
area shall include portions at a suitable elevation for the
construction of a pedestrian/bicycle pathway within the
380 DOLAN v. CITY OF TIGARD
Opinion of the Court
floodplain in accordance with the adopted pedestrian/
bicycle plan." CDC § 18.120.180.A.8, App. to Brief for
Respondent B-45 to B-46.
Thus, the Commission required that petitioner dedicate the
portion of her property lying within the 100-year floodplain
for improvement of a storm drainage system along Fanno
Creek and that she dedicate an additional 15-foot strip of
land adjacent to the floodplain as a pedestrian/ bicycle path-
way.2 The dedication required by that condition encom-
passes approximately 7,000 square feet, or roughly 10% of
the property. In accordance with city practice, petitioner
could rely on the dedicated property to meet the 15% open
space and landscaping requirement mandated by the city's
zoning scheme. App, to Pet. for Cert. G-28 to G-29. The
city would bear the cost of maintaining a landscaped buffer
between the dedicated area and the new store. Id., at G-44
to G-45.
Petitioner requested variances from the CDC standards.
Variances are granted only where it can be shown that,
owing to special circumstances related to a specific piece of
the land, the literal interpretation of the applicable zoning
provisions would cause "an undue or unnecessary hardship"
unless the variance is granted. CDC § 18.134.010, App, to
Brief for Respondent B-47.3 Rather than posing alterna-
2 The city's decision includes the following relevant conditions: "L The
applicant shall dedicate to the City as Greenway all portions of the site
that fall within the existing 100-year floodplain [of Fanno Creek] (i. e., all
portions of the property below elevation 150.0) and all property 15 feet
above (to the east of) the 150.0 foot floodplain boundary. The building
shall be designed so as not to intrude into the greenway area." App. to
Pet. for Cert. G-43.
3 CDC § 18.134.050 contains the following criteria whereby the decision -
making authority can approve, approve with modifications, or deny a vari-
ance request:
"(1) The proposed variance will not be materially detrimental to the pur-
poses of this title, be in conflict with the policies of the comprehensive
Cite as: 512 U. S. 374 (1994) 381
Opinion of the Court
tive mitigating measures to offset the expected impacts of
her proposed development, as allowed under the CDC, peti-
tioner simply argued that her proposed development would
not conflict with the policies of the comprehensive plan. Id.,
at E-4. The Commission denied the request.
The Commission made a series of findings concerning the
relationship between the dedicated conditions and the pro-
jected impacts of petitioner's project. First, the Commis-
sion noted that "[i]t is reasonable to assume that customers
and employees of the future uses of this site could utilize a
pedestrian/ bicycle pathway adjacent to this development for
their transportation and recreational needs." City of Ti-
gard Planning Commission Final Order No. 91-09 PC, App.
to Pet. for Cert. G-24. The Commission noted that the site
plan has provided for bicycle parking in a rack in front of the
proposed building and "[i]t is reasonable to expect that some
of the users of the bicycle parking provided for by the site
plan will use the pathway adjacent to Fanno Creek if it is
constructed." Ibid. In addition, the Commission found
that creation of a convenient, safe pedestrian/ bicycle path-
way system as an alternative means of transportation "could
plan, to any other applicable policies and standards, and to other proper-
ties in the same zoning district or vicinity;
"(2) There are special circumstances that exist which are peculiar to the
lot size or shape, topography or other circumstances over which the appli-
cant has no control, and which are not applicable to other properties in
the same zoning district;
"(3) The use proposed will be the same as permitted under this title and
City standards will be maintained to the greatest extent possible, while
permitting some economic use of the land;
"(4) Existing physical and natural systems, such as but not limited to traf-
fic, drainage, dramatic land forms, or parks will not be adversely affected
any more than would occur if the development were located as specified
in the title; and
"(5) The hardship is not self-imposed and the variance requested is the
minimum variance which would alleviate the hardship." App. to Brief for
Respondent B-49 to B-50.
382 DOLAN v. CITY OF TIGARD
Opinion of the Court
offset some of the traffic demand on [nearby] streets and
lessen the increase in traffic congestion." Ibid.
The Commission went on to note that the required flood -
plain dedication would be reasonably related to petitioner's
request to intensify the use of the site given the increase
in the impervious surface. The Commission stated that the
"anticipated increased storm water flow from the subject
property to an already strained creek and drainage basin can
only add to the public need to manage the stream channel
and floodplain for drainage purposes." Id., at G-37. Based
on this anticipated increased storm water flow, the Commis-
sion concluded that "the requirement of dedication of the
floodplain area on the site is related to the applicant's plan to
intensify development on the site." Ibid. The Tigard City
Council approved the Commission's final order, subject to
one minor modification; the city council reassigned the re-
sponsibility for surveying and marking the floodplain area
from petitioner to the city's engineering department. Id.,
at G-7.
Petitioner appealed to the Land Use Board of Appeals
(LUBA) on the ground that the city's dedication require-
ments were not related to the proposed development, and,
therefore, those requirements constituted an uncompensated
taking of her property under the Fifth Amendment. In
evaluating the federal taking claim, LUBA assumed that the
city's findings about the impacts of the proposed develop-
ment were supported by substantial evidence. Dolan v. Ti-
gard, LUBA 91-161 (Jan. 7, 1992), reprinted at App. to Pet.
for Cert. D-15, n. 9. Given the undisputed fact that the pro-
posed larger building and paved parking area would increase
the amount of impervious surfaces and the runoff into Fanno
Creek, LUBA concluded that "there is a `reasonable relation-
ship' between the proposed development and the require-
ment to dedicate land along Fanno Creek for a greenway."
Id., at D-16. With respect to the pedestrian/ bicycle path-
way, LUBA noted the Commission's finding that a signifi-
Cite as: 512 U. S. 374 (1994) 383
Opinion of the Court
cantly larger retail sales building and parking lot would at-
tract larger numbers of customers and employees and their
vehicles. It again found a "reasonable relationship" be-
tween alleviating the impacts of increased traffic from the
development and facilitating the provision of a pedestrian/
bicycle pathway as an alternative means of transportation.
Ibid.
The Oregon Court of Appeals affirmed, rejecting peti-
tioner's contention that in No llan v. California Coastal
Comm'n, 483 U. S. 825 (1987), we had abandoned the "reason-
able relationship" test in favor of a stricter "essential nexus"
test. 113 Ore. App. 162, 832 P. 2d 853 (1992). The Oregon
Supreme Court affirmed. 317 Ore. 110, 854 P. 2d 437 (1993).
The court also disagreed with petitioner's contention that
the No Ilan Court abandoned the "reasonably related" test.
317 Ore., at 118, 854 P. 2d, at 442. Instead, the court read
No Ilan to mean that an "exaction is reasonably related to an
impact if the exaction serves the same purpose that a denial
of the permit would serve." 317 Ore., at 120, 854 P. 2d, at
443. The court decided that both the pedestrian/ bicycle
pathway condition and the storm drainage dedication had an
essential nexus to the development of the proposed site. Id.,
at 121, 854 P. 2d, at 443. Therefore, the court found the
conditions to be reasonably related to the impact of the
expansion of petitioner's business. Ibid.4 We granted cer-
tiorari, 510 U. S. 989 (1993), because of an alleged conflict
between the Oregon Supreme Court's decision and our deci-
sion in Nollan, supra.
II
The Takings Clause of the Fifth Amendment of the United
States Constitution, made applicable to the States through
the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chi-
4 The Supreme Court of Oregon did not address the consequences of
petitioner's failure to provide alternative mitigation measures in her vari-
ance application and we take the case as it comes to us. Accordingly, we
do not pass on the constitutionality of the city's variance provisions.
384 DOLAN v. CITY OF TIGARD
Opinion of the Court
cago, 166 U. S. 226, 239 (1897), provides: "[N]or shall private
property be taken for public use, without just compensa-
tion." 5 One of the principal purposes of the Takings Clause
is "to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should
be borne by the public as a whole." Armstrong v. United
States, 364 U. S. 40, 49 (1960). Without question, had the
city simply required petitioner to dedicate a strip of land
along Fanno Creek for public use, rather than conditioning
the grant of her permit to redevelop her property on such a
dedication, a taking would have occurred. Nollan, supra,
at 831. Such public access would deprive petitioner of the
right to exclude others, "one of the most essential sticks in
the bundle of rights that are commonly characterized as
property." Kaiser Aetna v. United States, 444 U. S. 164,
176 (1979).
On the other side of the ledger, the authority of state and
local governments to engage in land use planning has been
sustained against constitutional challenge as long ago as our
decision in Village of Euclid v. Ambler Realty Co., 272 U. S.
365 (1926). "Government hardly could go on if to some ex-
tent values incident to property could not be diminished
5 JUSTICE STEVENS' dissent suggests that this case is actually grounded
in "substantive" due process, rather than in the view that the Takings
Clause of the Fifth Amendment was made applicable to the States by the
Fourteenth Amendment. But there is no doubt that later cases have held
that the Fourteenth Amendment does make the Takings Clause of the
Fifth Amendment applicable to the States, see Penn Central Transp. Co.
v. New York City, 438 U. S. 104, 122 (1978); Nollan v. California Coastal
Comm'n, 483 U. S. 825, 827 (1987). Nor is there any doubt that these
cases have relied upon Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226
(1897), to reach that result. See, e. g., Penn Central, supra, at 122 ("The
issu[e] presented ... [is] whether the restrictions imposed by New York
City's law upon appellants' exploitation of the Terminal site effect a `tak-
ing' of appellants' property for a public use within the meaning of the
Fifth Amendment, which of course is made applicable to the States
through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chi-
cago, 166 U. S. 226, 239 (1897)").
Cite as: 512 U. S. 374 (1994) 385
Opinion of the Court
without paying for every such change in the general law."
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922).
A land use regulation does not effect a taking if it "substan-
tially advance[s] legitimate state interests" and does not
"den[y] an owner economically viable use of his land."
Agins v. City of Tiburon, 447 U. S. 255, 260 (1980).6
The sort of land use regulations discussed in the cases just
cited, however, differ in two relevant particulars from the
present case. First, they involved essentially legislative de-
terminations classifying entire areas of the city, whereas
here the city made an adjudicative decision to condition peti-
tioner's application for a building permit on an individual
parcel. Second, the conditions imposed were not simply a
limitation on the use petitioner might make of her own par-
cel, but a requirement that she deed portions of the property
to the city. In No Ilan, supra, we held that governmental
authority to exact such a condition was circumscribed by the
Fifth and Fourteenth Amendments. Under the well -settled
doctrine of "unconstitutional conditions," the government
may not require a person to give up a constitutional right
here the right to receive just compensation when property
is taken for a public use in exchange for a discretionary
benefit conferred by the government where the benefit
sought has little or no relationship to the property. See
Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U. S. 5% 568 (1968).
Petitioner contends that the city has forced her to choose
between the building permit and her right under the Fifth
6 There can be no argument that the permit conditions would deprive
petitioner of "economically beneficial us[e]" of her property as she cur-
rently operates a retail store on the lot. Petitioner assuredly is able to
derive some economic use from her property. See, e. g., Lucas v. South
Carolina Coastal Council, 505 U. S. 1003, 1019 (1992); Kaiser Aetna v.
United States, 444 U. S. 164, 175 (1979); Penn Central Transp. Co. v. New
York City, supra, at 124.
386 DOLAN v. CITY OF TIGARD
Opinion of the Court
Amendment to just compensation for the public easements.
Petitioner does not quarrel with the city's authority to exact
some forms of dedication as a condition for the grant of a
building permit, but challenges the showing made by the city
to justify these exactions. She argues that the city has
identified "no special benefits" conferred on her, and has not
identified any "special quantifiable burdens" created by her
new store that would justify the particular dedications re-
quired from her which are not required from the public at
large.
III
In evaluating petitioner's claim, we must first determine
whether the "essential nexus" exists between the "legitimate
state interest" and the permit condition exacted by the city.
No llan, 483 U. S., at 837. If we find that a nexus exists, we
must then decide the required degree of connection between
the exactions and the projected impact of the proposed de-
velopment. We were not required to reach this question in
No Ilan, because we concluded that the connection did not
meet even the loosest standard. Id., at 838. Here, how-
ever, we must decide this question.
M_
We addressed the essential nexus question in No Ilan.
The California Coastal Commission demanded a lateral pub-
lic easement across the Nollans' beachfront lot in exchange
for a permit to demolish an existing bungalow and replace it
with a three -bedroom house. Id., at 828. The public ease-
ment was designed to connect two public beaches that were
separated by the Nollans' property. The Coastal Commis-
sion had asserted that the public easement condition was im-
posed to promote the legitimate state interest of diminishing
the "blockage of the view of the ocean" caused by construc-
tion of the larger house.
We agreed that the Coastal Commission's concern with
protecting visual access to the ocean constituted a legitimate
Cite as: 512 U. S. 374 (1994) 387
Opinion of the Court
public interest. Id., at 835. We also agreed that the permit
condition would have been constitutional "even if it consisted
of the requirement that the Nollans provide a viewing spot
on their property for passersby with whose sighting of the
ocean their new house would interfere." Id., at 836. We
resolved, however, that the Coastal Commission's regulatory
authority was set completely adrift from its constitutional
moorings when it claimed that a nexus existed between vis-
ual access to the ocean and a permit condition requiring lat-
eral public access along the Nollans' beachfront lot. Id., at
837. How enhancing the public's ability to "traverse to and
along the shorefront" served the same governmental pur-
pose of "visual access to the ocean" from the roadway was
beyond our ability to countenance. The absence of a nexus
left the Coastal Commission in the position of simply trying
to obtain an easement through gimmickry, which converted
a valid regulation of land use into "'an out-and-out plan of
extortion."' Ibid., quoting J. E. D. Associates, Inc. v. Atkin-
son, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981).
No such gimmicks are associated with the permit condi-
tions imposed by the city in this case. Undoubtedly, the
prevention of flooding along Fanno Creek and the reduction
of traffic congestion in the Central Business District qualify
as the type of legitimate public purposes we have upheld.
Ag►ins, 447 U. S., at 260-262. It seems equally obvious that
a nexus exists between preventing flooding along Fanno
Creek and limiting development within the creek's 100-year
floodplain. Petitioner proposes to double the size of her re-
tail store and to pave her now -gravel parking lot, thereby
expanding the impervious surface on the property and in-
creasing the amount of storm water runoff into Fanno Creek.
The same may be said for the city's attempt to reduce traf-
fic congestion by providing for alternative means of transpor-
tation. In theory, a pedestrian/bicycle pathway provides a
useful alternative means of transportation for workers and
shoppers: "Pedestrians and bicyclists occupying dedicated
388 DOLAN v. CITY OF TIGARD
Opinion of the Court
spaces for walking and/or bicycling ... remove potential ve-
hicles from streets, resulting in an overall improvement in
total transportation system flow." A. Nelson, Public Provi-
sion of Pedestrian and Bicycle Access Ways: Public Policy
Rationale and the Nature of Private Benefits 11, Center for
Planning Development, Georgia Institute of Technology,
Working Paper Series (Jan. 1994). See also Intermodal Sur-
face Transportation Efficiency Act of 1991, Pub. L. 102-240,
105 Stat. 1914 (recognizing pedestrian and bicycle facilities
as necessary components of any strategy to reduce traffic
congestion).
B
The second part of our analysis requires us to determine
whether the degree of the exactions demanded by the city's
permit conditions bears the required relationship to the pro-
jected impact of petitioner's proposed development. No l-
lan, supra, at 834, quoting Penn Central Transp. Co. v. New
York City, 438 U. S. 104, 127 (1978) ("'[A] use restriction may
constitute a "taking" if not reasonably necessary to the effec-
tuation of a substantial government purpose"'). Here the
Oregon Supreme Court deferred to what it termed the "city's
unchallenged factual findings" supporting the dedication con-
ditions and found them to be reasonably related to the im-
pact of the expansion of petitioner's business. 317 Ore., at
120-121, 854 P. 2d, at 443.
The city required that petitioner dedicate "to the City as
Greenway all portions of the site that fall within the existing
100-year floodplain [of Fanno Creek] ... and all property 15
feet above [the floodplain] boundary." Id., at 113, n. 3, 854
P. 2d, at 439, n. 3. In addition, the city demanded that the
retail store be designed so as not to intrude into the green -
way area. The city relies on the Commission's rather tenta-
tive findings that increased storm water flow from petition-
er's property "can only add to the public need to manage the
[floodplain] for drainage purposes" to support its conclusion
that the "requirement of dedication of the floodplain area on
Cite as: 512 U. S. 374 (1994) 389
Opinion of the Court
the site is related to the applicant's plan to intensify develop-
ment on the site." City of Tigard Planning Commission
Final Order No. 91-09 PC, App. to Pet. for Cert. G-37.
The city made the following specific findings relevant to
the pedestrian/ bicycle pathway:
"In addition, the proposed expanded use of this site is
anticipated to generate additional vehicular traffic
thereby increasing congestion on nearby collector
and arterial streets. Creation of a convenient, safe
pedestrian/ bicycle pathway system as an alternative
means of transportation could offset some of the traffic
demand on these nearby streets and lessen the increase
in traffic congestion." Id., at G-24.
The question for us is whether these findings are constitu-
tionally sufficient to justify the conditions imposed by the
city on petitioner's building permit. Since state courts have
been dealing with this question a good deal longer than we
have, we turn to representative decisions made by them.
In some States, very generalized statements as to the nec-
essary connection between the required dedication and the
proposed development seem to suffice. See, e. g., Billings
Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394
P. 2d 182 (1964); Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218
N. E. 2d 673 (1966). We think this standard is too lax to
adequately protect petitioner's right to just compensation if
her property is taken for a public purpose.
Other state courts require a very exacting correspondence,
described as the "specifi[c] and uniquely attributable" test.
The Supreme Court of Illinois first developed this test in
Pioneer Trust & Savings Bank v. Mount Prospect, 22 I11. 2d
375, 380, 176 N. E. 2d 799, 802 (1961).7 Under this standard,
7 The "specifically and uniquely attributable" test has now been adopted
by a minority of other courts. See, e. g., J. E. D. Associates, Inc. v. Atkin-
son, 121 N. H. 581, 585, 432 A. 2d 12, 15 (1981); Divan Builders, Inc. v.
Planning Bd. of Twp. of Wayne, 66 N. J. 582, 600-601, 334 A. 2d 30, 40
390 DOLAN v. CITY OF TIGARD
Opinion of the Court
if the local government cannot demonstrate that its exaction
is directly proportional to the specifically created need, the
exaction becomes "a veiled exercise of the power of eminent
domain and a confiscation of private property behind the de-
fense of police regulations." Id., at 381, 176 N. E. 2d, at 802.
We do not think the Federal Constitution requires such ex-
acting scrutiny, given the nature of the interests involved.
A number of state courts have taken an intermediate posi-
tion, requiring the municipality to show a "reasonable rela-
tionship" between the required dedication and the impact of
the proposed development. Typical is the Supreme Court
of Nebraska's opinion in Simpson v. North Platte, 206 Neb.
240, 245, 292 N. W. 2d 297, 301 (1980), where that court
stated:
"The distinction, therefore, which must be made be-
tween an appropriate exercise of the police power and
an improper exercise of eminent domain is whether the
requirement has some reasonable relationship or nexus
to the use to which the property is being made or is
merely being used as an excuse for taking property sim-
ply because at that particular moment the landowner is
asking the city for some license or permit."
Thus, the court held that a city may not require a property
owner to dedicate private property for some future public
use as a condition of obtaining a building permit when such
future use is not "occasioned by the construction sought to
be permitted." Id., at 248, 292 N. W. 2d, at 302.
Some form of the reasonable relationship test has been
adopted in many other jurisdictions. See, e. g►., Jordan v.
Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965);
Collis v. Blooming►ton, 310 Minn. 5, 246 N. W. 2d 19 (1976)
(requiring a showing of a reasonable relationship between
(1975); McKain v. Toledo City Plan Comm'n, 26 Ohio App. 2d 171, 176,
270 N. E. 2d 370, 374 (1971); Frank Ansuini, Inc. v. Cranston, 107 R. I.
% 69, 264 A. 2d 910, 913 (1970).
Cite as: 512 U. S. 374 (1994) 391
Opinion of the Court
the planned subdivision and the municipality's need for land);
College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 807
(Tex. 1984); Call v. West Jordan, 606 P. 2d 217, 220 (Utah
1979) (affirming use of the reasonable relation test). Despite
any semantical differences, general agreement exists among
the courts "that the dedication should have some reasonable
relationship to the needs created by the [development]."
Ibid. See generally Note, "'Take' My Beach Please! ":
Nollan v. California Coastal Commission and a Rational -
Nexus Constitutional Analysis of Development Exactions,
69 B. U. L. Rev. 823 (1989); see also Parrs v. Watson, 716
F. 2d 646, 651-653 (CA9 1983).
We think the "reasonable relationship" test adopted by a
majority of the state courts is closer to the federal constitu-
tional norm than either of those previously discussed. But
we do not adopt it as such, partly because the term "rea-
sonable relationship" seems confusingly similar to the term
"rational basis" which describes the minimal level of scru-
tiny under the Equal Protection Clause of the Fourteenth
Amendment. We think a term such as "rough proportional-
ity" best encapsulates what we hold to be the requirement
of the Fifth Amendment. No precise mathematical calcula-
tion is required, but the city must make some sort of individ-
ualized determination that the required dedication is related
both in nature and extent to the impact of the proposed
development.g
8 JUSTICE STEVENS' dissent takes us to task for placing the burden on
the city to justify the required dedication. He is correct in arguing that
in evaluating most generally applicable zoning regulations, the burden
properly rests on the party challenging the regulation to prove that it
constitutes an arbitrary regulation of property rights. See, e. g., Village
of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). Here, by contrast,
the city made an adjudicative decision to condition petitioner's application
for a building permit on an individual parcel. In this situation, the burden
properly rests on the city. See Nollan, 483 U. S., at 836. This conclusion
is not, as he suggests, undermined by our decision in Moore v. East Cleve-
land, 431 U. S. 494 (1977), in which we struck down a housing ordinance
392 DOLAN v. CITY OF TIGARD
Opinion of the Court
JUSTICE STEVENS' dissent relies upon a law review article
for the proposition that the city's conditional demands for
part of petitioner's property are "a species of business regu-
lation that heretofore warranted a strong presumption of
constitutional validity." Post, at 402. But simply denomi-
nating a governmental measure as a "business regulation"
does not immunize it from constitutional challenge on the
ground that it violates a provision of the Bill of Rights. In
Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), we held that
a statute authorizing a warrantless search of business prem-
ises in order to detect OSHA violations violated the Fourth
Amendment. See also Air Pollution Variance Bd. of Colo.
v. Western Alfalfa Corp., 416 U. S. 861 (1974); New York v.
Burger, 482 U. S. 691 (1987). And in Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557
(1980), we held that an order of the New York Public Service
Commission, designed to cut down the use of electricity
because of a fuel shortage, violated the First Amendment
insofar as it prohibited advertising by a utility company to
promote the use of electricity. 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 Amend-
ment, should be relegated to the status of a poor relation in
these comparable circumstances. We turn now to analy-
sis of whether the findings relied upon by the city here,
first with respect to the floodplain easement, and second
with respect to the pedestrian/ bicycle path, satisfied these
requirements.
It is axiomatic that increasing the amount of impervious
surface will increase the quantity and rate of storm water
flow from petitioner's property. Record, Doc. No. F, ch. 4,
that limited occupancy of a dwelling unit to members of a single family as
violating the Due Process Clause of the Fourteenth Amendment. The
ordinance at issue in Moore intruded on choices concerning family living
arrangements, an area in which the usual deference to the legislature was
found to be inappropriate. Id., at 499.
Cite as: 512 U. S. 374 (1994) 393
Opinion of the Court
p. 4-29. Therefore, keeping the floodplain open and free
from development would likely confine the pressures on
Fanno Creek created by petitioner's development. In fact,
because petitioner's property lies within the Central Busi-
ness District, the CDC already required that petitioner leave
15% of it as open space and the undeveloped floodplain would
have nearly satisfied that requirement. App. to Pet. for
Cert. G-16 to G-17. But the city demanded more it not
only wanted petitioner not to build in the floodplain, but it
also wanted petitioner's property along Fanno Creek for its
greenway system. The city has never said why a public
greenway, as opposed to a private one, was required in the
interest of flood control.
The difference to petitioner, of course, is the loss of her
ability to exclude others. As we have noted, this right to
exclude others is "one of the most essential sticks in the bun-
dle of rights that are commonly characterized as property."
Kaiser Aetna, 444 U. S., at 176. It is difficult to see why
recreational visitors trampling along petitioner's floodplain
easement are sufficiently related to the city's legitimate in-
terest in reducing flooding problems along Fanno Creek, and
the city has not attempted to make any individualized deter-
mination to support this part of its request.
The city contends that the recreational easement along the
greenway is only ancillary to the city's chief purpose in con-
trolling flood hazards. It further asserts that unlike the res-
idential property at issue in No Ilan, petitioner's property is
commercial in character and, therefore, her right to exclude
others is compromised. Brief for Respondent 41, quoting
United States v. Orito, 413 U. S. 139, 142 (1973) ("'The Con-
stitution extends special safeguards to the privacy of the
home"'). The city maintains that "[t]here is nothing to sug-
gest that preventing [petitioner] from prohibiting [the ease-
ments] will unreasonably impair the value of [her] property
as a [retail store]." PrnneYard Shopping► Center v. Robins,
447 U. S. 74, 83 (1980).
394 DOLAN v. CITY OF TIGARD
Opinion of the Court
Admittedly, petitioner wants to build a bigger store to
attract members of the public to her property. She also
wants, however, to be able to control the time and manner
in which they enter. The recreational easement on the
greenway is different in character from the exercise of
state -protected rights of free expression and petition that
we permitted in Procne Yard. In Procne Yard, we held that a
major private shopping center that attracted more than
25,000 daily patrons had to provide access to persons exercis-
ing their state constitutional rights to distribute pamphlets
and ask passers-by to sign their petitions. Id., at 85. We
based our decision, in part, on the fact that the shopping
center "may restrict expressive activity by adopting time,
place, and manner regulations that will minimize any in-
terference with its commercial functions." Id., at 83. By
contrast, the city wants to impose a permanent recreational
easement upon petitioner's property that borders Fanno
Creek. Petitioner would lose all rights to regulate the time
in which the public entered onto the greenway, regardless of
any interference it might pose with her retail store. Her
right to exclude would not be regulated, it would be
eviscerated.
If petitioner's proposed development had somehow en-
croached on existing greenway space in the city, it would
have been reasonable to require petitioner to provide some
alternative greenway space for the public either on her prop-
erty or elsewhere. See No Ilan, 483 U. S., at 836 ("Although
such a requirement, constituting a permanent grant of con-
tinuous access to the property, would have to be considered
a taking if it were not attached to a development permit, the
Commission's assumed power to forbid construction of the
house in order to protect the public's view of the beach must
surely include the power to condition construction upon some
concession by the owner, even a concession of property
rights, that serves the same end"). But that is not the case
here. We conclude that the findings upon which the city re-
Cite as: 512 U. S. 374 (1994) 395
Opinion of the Court
lies do not show the required reasonable relationship be-
tween the floodplain easement and the petitioner's proposed
new building.
With respect to the pedestrian/ bicycle pathway, we have
no doubt that the city was correct in finding that the larger
retail sales facility proposed by petitioner will increase traf-
fic on the streets of the Central Business District. The city
estimates that the proposed development would generate
roughly 435 additional trips per day.9 Dedications for
streets, sidewalks, and other public ways are generally rea-
sonable exactions to avoid excessive congestion from a pro-
posed property use. But on the record before us, the city
has not met its burden of demonstrating that the additional
number of vehicle and bicycle trips generated by petitioner's
development reasonably relate to the city's requirement for
a dedication of the pedestrian/bicycle pathway easement.
The city simply found that the creation of the pathway "could
offset some of the traffic demand ... and lessen the increase
in traffic congestion." to
As Justice Peterson of the Supreme Court of Oregon ex-
plained in his dissenting opinion, however, "[t]he findings of
fact that the bicycle pathway system `could offset some of
the traffic demand' is a far cry from a finding that the bicycle
pathway system will, or is likely to, offset some of the traffic
demand." 317 Ore., at 127, 854 P. 2d, at 447 (emphasis in
original). No precise mathematical calculation is required,
but the city must make some effort to quantify its findings in
9 The city uses a weekday average trip rate of 53.21 trips per 1,000
square feet. Additional Trips Generated = 53.21 x (17,600 — 9,720).
App. to Pet. for Cert. G-15.
to In rejecting petitioner's request for a variance from the pathway dedi-
cation condition, the city stated that omitting the planned section of the
pathway across petitioner's property would conflict with its adopted policy
of providing a continuous pathway system. But the Takings Clause re-
quires the city to implement its policy by condemnation unless the re-
quired relationship between petitioner's development and added traffic is
shown.
396 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
support of the dedication for the pedestrian/bicycle pathway
beyond the conclusory statement that it could offset some of
the traffic demand generated.
I_MA
Cities have long engaged in the commendable task of land
use planning, made necessary by increasing urbanization,
particularly in metropolitan areas such as Portland. The
city's goals of reducing flooding hazards and traffic conges-
tion, and providing for public greenways, are laudable, but
there are outer limits to how this may be done. "A strong
public desire to improve the public condition [will not] war-
rant achieving the desire by a shorter cut than the constitu-
tional way of paying for the change." Pennsylvania Coal,
260 U. S., at 416.
The judgment of the Supreme Court of Oregon is reversed,
and the case is remanded for further proceedings not incon-
sistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and
JUSTICE GINSBURG join, dissenting.
The record does not tell us the dollar value of petitioner
Florence Dolan's interest in excluding the public from the
greenway adjacent to her hardware business. The moun-
tain of briefs that the case has generated nevertheless makes
it obvious that the pecuniary value of her victory is far less
important than the rule of law that this case has been used
to establish. It is unquestionably an important case.
Certain propositions are not in dispute. The enlargement
of the Tigard unit in Dolan's chain of hardware stores will
have an adverse impact on the city's legitimate and substan-
tial interests in controlling drainage in Fanno Creek and
minimizing traffic congestion in Tigard's business district.
That impact is sufficient to justify an outright denial of her
application for approval of the expansion. The city has nev-
Cite as: 512 U. S. 374 (1994) 397
STEVENS, J., dissenting
ertheless agreed to grant Dolan's application if she will com-
ply with two conditions, each of which admittedly will miti-
gate the adverse effects of her proposed development. The
disputed question is whether the city has violated the Four-
teenth Amendment to the Federal Constitution by refusing
to allow Dolan's planned construction to proceed unless those
conditions are met.
The Court is correct in concluding that the city may not
attach arbitrary conditions to a building permit or to a vari-
ance even when it can rightfully deny the application out-
right. I also agree that state court decisions dealing with
ordinances that govern municipal development plans provide
useful guidance in a case of this kind. Yet the Court's de-
scription of the doctrinal underpinnings of its decision, the
phrasing of its fledgling test of "rough proportionality," and
the application of that test to this case run contrary to the
traditional treatment of these cases and break considerable
and unpropitious new ground.
Candidly acknowledging the lack of federal precedent for
its exercise in rulemaking, the Court purports to find guid-
ance in 12 "representative" state court decisions. To do so
is certainly appropriate.' The state cases the Court con-
sults, however, either fail to support or decidedly undermine
the Court's conclusions in key respects.
First, although discussion of the state cases permeates the
Court's analysis of the appropriate test to apply in this case,
the test on which the Court settles is not naturally derived
from those courts' decisions. The Court recognizes as an
initial matter that the city's conditions satisfy the "essential
nexus" requirement announced in No llan v. California
Coastal Comm'n, 483 U. S. 825 (1987), because they serve
the legitimate interests in minimizing floods and traffic con-
1 Cf. Moore v. East Cleveland, 431 U. S. 494, 513-521 (1977) (STEVENS,
J., concurring in judgment).
398 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
gestions. Ante, at 387-388.2 The Court goes on, however,
to erect a new constitutional hurdle in the path of these con-
ditions. In addition to showing a rational nexus to a public
purpose that would justify an outright denial of the permit,
the city must also demonstrate "rough proportionality" be-
tween the harm caused by the new land use and the benefit
obtained by the condition. Ante, at 391. The Court also
decides for the first time that the city has the burden of es-
tablishing the constitutionality of its conditions by making
an "individualized determination" that the condition in ques-
tion satisfies the proportionality requirement. See ibid.
Not one of the state cases cited by the Court announces
anything akin to a "rough proportionality" requirement.
For the most part, moreover, those cases that invalidated
municipal ordinances did so on state law or unspecified
grounds roughly equivalent to No llan's "essential nexus" re-
quirement. See, e. g., Simpson v. North Platte, 206 Neb.
240, 245-248, 292 N. W. 2d 297, 301-302 (1980) (ordinance
lacking "reasonable relationship" or "rational nexus" to prop-
erty's use violated Nebraska Constitution); J. E. D. Associ-
ates, Inc. v. Atkinson, 121 N. H. 581, 583-585, 432 A. 2d 12,
14-15 (1981) (state constitutional grounds). One case pur-
2In Nollan the Court recognized that a state agency may condition the
grant of a land use permit on the dedication of a property interest if the
dedication serves a legitimate police -power purpose that would justify a
refusal to issue the permit. For the first time, however, it held that such
a condition is unconstitutional if the condition "utterly fails" to further a
goal that would justify the refusal. 483 U. S., at 837. In the Nollan
Court's view, a condition would be constitutional even if it required the
Nollans to provide a viewing spot for passers-by whose view of the ocean
was obstructed by their new house. Id., at 836. "Although such a re-
quirement, constituting a permanent grant of continuous access to the
property, would have to be considered a taking if it were not attached to
a development permit, the Commission's assumed power to forbid con-
struction of the house in order to protect the public's view of the beach
must surely include the power to condition construction upon some conces-
sion by the owner, even a concession of property rights, that serves the
same end." Ibid.
Cite as: 512 U. S. 374 (1994) 399
STEVENS, J., dissenting
porting to apply the strict "specifically and uniquely attribut-
able" test established by Pioneer Trust & Saving►s Bank v.
Mount Prospect, 22 I11.2d 375, 176 N. E. 2d 799 (1961), never-
theless found that test was satisfied because the legislature
had decided that the subdivision at issue created the need
for a park or parks. Billings Properties, Inc. v. Yellowstone
County, 144 Mont. 25, 33-36, 394 P. 2d 182, 187-188 (1964).
In only one of the seven cases upholding a land use regula-
tion did the losing property owner petition this Court for
certiorari. See Jordan v. Menomonee Falls, 28 Wis. 2d 608,
137 N. W. 2d 442 (1965), appeal dism'd, 385 U. S. 4 (1966)
(want of substantial federal question). Although 4 of the 12
opinions mention the Federal Constitution-2 of those only
in passing it is quite obvious that neither the courts nor
the litigants imagined they might be participating in the
development of a new rule of federal law. Thus, although
these state cases do lend support to the Court's reaffirmance
of No llan's reasonable nexus requirement, the role the Court
accords them in the announcement of its newly minted
second phase of the constitutional inquiry is remarkably
inventive.
In addition, the Court ignores the state courts' willingness
to consider what the property owner gains from the ex-
change in question. The Supreme Court of Wisconsin, for
example, found it significant that the village's approval of a
proposed subdivision plat "enables the subdivider to profit
financially by selling the subdivision lots as home-building
sites and thus realizing a greater price than could have been
obtained if he had sold his property as unplatted lands."
Jordan v. Menomonee Falls, 28 Wis. 2d, at 619-620; 137
N. W. 2d, at 448. The required dedication as a condition of
that approval was permissible "[i]n return for this benefit."
Ibid. See also Collis v. Blooming►ton, 310 Minn. 5, 11-13,
246 N. W. 2d 19, 23-24 (1976) (citing Jordan); College Station
v. Turtle Rock Corp., 680 S. W. 2d 802, 806 (Tex. 1984) (dedi-
cation requirement only triggered when developer chooses
400 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
to develop land). In this case, moreover, Dolan's acceptance
of the permit, with its attached conditions, would provide
her with benefits that may well go beyond any advantage
she gets from expanding her business. As the United
States pointed out at oral argument, the improvement that
the city's drainage plan contemplates would widen the chan-
nel and reinforce the slopes to increase the carrying capacity
during serious floods, "confer[ring] considerable benefits on
the property owners immediately adjacent to the creek."
Tr. of Oral Arg. 41-42.
The state court decisions also are enlightening in the ex-
tent to which they required that the entire parcel be given
controlling importance. All but one of the cases involve
challenges to provisions in municipal ordinances requiring
developers to dedicate either a percentage of the entire par-
cel (usually 7 or 10 percent of the platted subdivision) or an
equivalent value in cash (usually a certain dollar amount
per lot) to help finance the construction of roads, utilities,
schools, parks, and playgrounds. In assessing the legality
of the conditions, the courts gave no indication that the
transfer of an interest in realty was any more objectionable
than a cash payment. See, e. g►., Jenad, Inc. v. Scarsdale, 18
N. Y. 2d 78, 218 N. E. 2d 673 (1966); Jordan v. Menomonee
Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965); Collis v.
Bloomington, 310 Minn. 5, 246 N. W. 2d 19 (1976). None of
the decisions identified the surrender of the fee owner's
"power to exclude" as having any special significance. In-
stead, the courts uniformly examined the character of the
entire economic transaction.
II
It is not merely state cases, but our own cases as well, that
require the analysis to focus on the impact of the city's action
on the entire parcel of private property. In Penn Central
Transp. Co. v. New York City, 438 U. S. 104 (1978), we stated
that takings jurisprudence "does not divide a single parcel
Cite as: 512 U. S. 374 (1994) 401
STEVENS, J., dissenting
into discrete segments and attempt to determine whether
rights in a particular segment have been entirely abro-
gated." Id., at 130-131. Instead, this Court focuses "both
on the character of the action and on the nature and extent
of the interference with rights in the parcel as a whole."
Ibid. Andrus v. Allard, 444 U. S. 51 (1979), reaffirmed the
nondivisibility principle outlined in Penn Central, stating
that "[a]t least where an owner possesses a full `bundle' of
property rights, the destruction of one `strand' of the bundle
is not a taking, because the aggregate must be viewed in its
entirety." 444 U. S., at 65-66.3 As recently as last Term,
we approved the principle again. See Concrete Pipe &
Products of Cal., Inc. v. Construction Laborers Pension
Trust for Southern Cal., 508 U. S. 602, 644 (1993) (explaining
that "a claimant's parcel of property [cannot] first be divided
into what was taken and what was left" to demonstrate a
compensable taking). Although limitation of the right to ex-
clude others undoubtedly constitutes a significant infringe-
ment upon property ownership, Kaiser Aetna v. United
States, 444 U. S. 164, 179-180 (1979), restrictions on that
right do not alone constitute a taking, and do not do so in
any event unless they "unreasonably impair the value or use"
of the property. Prune Yard Shopping► Center v. Robins, 447
U. S. 74, 82-84 (1980).
The Court's narrow focus on one strand in the property
owner's bundle of rights is particularly misguided in a case
involving the development of commercial property. As Pro-
fessor Johnston has noted:
"The subdivider is a manufacturer, processer, and
marketer of a product; land is but one of his raw materi-
als. In subdivision control disputes, the developer is
3 Similarly, in Keystone Bituminous Coal Assn. v. DeBenedictis, 480
U. S. 470, 498-499 (1987), we concluded that "[t]he 27 million tons of coal
do not constitute a separate segment of property for takings law pur-
poses" and that "[t]here is no basis for treating the less than 2% of petition-
ers' coal as a separate parcel of property."
402 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
not defending hearth and home against the king's intru-
sion, but simply attempting to maximize his profits from
the sale of a finished product. As applied to him, subdi-
vision control exactions are actually business regula-
tions." Johnston, Constitutionality of Subdivision Con-
trol Exactions: The Quest for A Rationale, 52 Cornell L.
Q. 871, 923 (1967).4
The exactions associated with the development of a retail
business are likewise a species of business regulation that
heretofore warranted a strong presumption of constitu-
tional validity.
In Johnston's view, "if the municipality can demonstrate
that its assessment of financial burdens against subdividers
is rational, impartial, and conducive to fulfillment of author-
ized planning objectives, its action need be invalidated only
in those extreme and presumably rare cases where the bur-
den of compliance is sufficiently great to deter the owner
from proceeding with his planned development." Id., at 917.
The city of Tigard has demonstrated that its plan is rational
and impartial and that the conditions at issue are "conducive
to fulfillment of authorized planning objectives." Dolan, on
the other hand, has offered no evidence that her burden of
compliance has any impact at all on the value or profitability
of her planned development. Following the teaching of the
cases on which it purports to rely, the Court should not iso-
late the burden associated with the loss of the power to ex-
4 Johnston's article also sets forth a fair summary of the state cases from
which the Court purports to derive its "rough proportionality" test. See
52 Cornell L. Q., at 917. Like the Court, Johnston observed that cases
requiring a "rational nexus" between exactions and public needs created
by the new subdivision —especially Jordan v. Menomonee Falls, 28 Wis.
2d 608, 137 N. W. 2d 442 (1965)—"stee[r] a moderate course" between the
"judicial obstructionism" of Pioneer Trust & Savings Bank v. Mount
Prospect, 22 Ill. 2d 375, 176 N. E. 2d 799 (1961), and the "excessive defer-
ence" of Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394
P. 2d 182 (1964). 52 Cornell L. Q., at 917.
Cite as: 512 U. S. 374 (1994) 403
STEVENS, J., dissenting
clude from an evaluation of the benefit to be derived from
the permit to enlarge the store and the parking lot.
The Court's assurances that its "rough proportionality"
test leaves ample room for cities to pursue the "commendable
task of land use planning," ante, at 396 even twice avowing
that "[n]o precise mathematical calculation is required," ante,
at 391, 395 are wanting given the result that test compels
here. Under the Court's approach, a city must not only
"quantify its findings," ante, at 395, and make "individualized
determination[s]" with respect to the nature and the extent
of the relationship between the conditions and the impact,
ante, at 391, 393, but also demonstrate "proportionality."
The correct inquiry should instead concentrate on whether
the required nexus is present and venture beyond considera-
tions of a condition's nature or germaneness only if the devel-
oper establishes that a concededly germane condition is so
grossly disproportionate to the proposed development's ad-
verse effects that it manifests motives other than land use
regulation on the part of the city.5 The heightened require-
ment the Court imposes on cities is even more unjustified
when all the tools needed to resolve the questions presented
by this case can be garnered from our existing case law.
III
Applying its new standard, the Court finds two defects
in the city's case. First, while the record would adequately
support a requirement that Dolan maintain the portion of
the floodplain on her property as undeveloped open space, it
does not support the additional requirement that the flood -
plain be dedicated to the city. Ante, at 392-395. Second,
5 Dolan's attorney overstated the danger when he suggested at oral
argument that without some requirement for proportionality, "[t]he City
could have found that Mrs. Dolan's new store would have increased traffic
by one additional vehicle trip per day [and] could have required her to
dedicate 75, 95 percent of her land for a widening of Main Street." Tr. of
Oral Arg. 52-53.
404 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
while the city adequately established the traffic increase that
the proposed development would generate, it failed to quan-
tify the offsetting decrease in automobile traffic that the bike
path will produce. Ante, at 395-396. Even under the
Court's new rule, both defects are, at most, nothing more
than harmless error.
In her objections to the floodplain condition, Dolan made
no effort to demonstrate that the dedication of that portion
of her property would be any more onerous than a simple
prohibition against any development on that portion of her
property. Given the commercial character of both the exist-
ing and the proposed use of the property as a retail store, it
seems likely that potential customers "trampling along pe-
titioner's floodplain," ante, at 393, are more valuable than
a useless parcel of vacant land. Moreover, the duty to pay
taxes and the responsibility for potential tort liability may
well make ownership of the fee interest in useless land a
liability rather than an asset. That may explain why Dolan
never conceded that she could be prevented from building
on the floodplain. The city attorney also pointed out that
absent a dedication, property owners would be required to
"build on their own land" and "with their own money" a stor-
age facility for the water runoff. Tr. of Oral Arg. 30-31.
Dolan apparently "did have that option," but chose not to
seek it. Id., at 31. If Dolan might have been entitled to a
variance confining the city's condition in a manner this Court
would accept, her failure to seek that narrower form of relief
at any stage of the state administrative and judicial proceed-
ings clearly should preclude that relief in this Court now.
The Court's rejection of the bike path condition amounts
to nothing more than a play on words. Everyone agrees
that the bike path "could" offset some of the increased traffic
flow that the larger store will generate, but the findings do
not unequivocally state that it will do so, or tell us just how
many cyclists will replace motorists. Predictions on such
matters are inherently nothing more than estimates. Cer-
Cite as: 512 U. S. 374 (1994) 405
STEVENS, J., dissenting
tainly the assumption that there will be an offsetting benefit
here is entirely reasonable and should suffice whether it
amounts to 100 percent, 35 percent, or only 5 percent of
the increase in automobile traffic that would otherwise occur.
If the Court proposes to have the federal judiciary micro -
manage state decisions of this kind, it is indeed extending
its welcome mat to a significant new class of litigants. Al-
though there is no reason to believe that state courts have
failed to rise to the task, property owners have surely found
a new friend today.
IV
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. Even more consequen-
tial than its incorrect disposition of this case, however, is the
Court's resurrection of a species of substantive due process
analysis that it firmly rejected decades ago.6
The Court begins its constitutional analysis by citing Chi-
cago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897), for
the proposition that the Takings Clause of the Fifth Amend-
ment is "applicable to the States through the Fourteenth
Amendment." Ante, at 383. That opinion, however, con-
tains no mention of either the Takings Clause or the Fifth
Amendment; 7 it held that the protection afforded by the Due
Process Clause of the Fourteenth Amendment extends to
matters of substance as well as procedure,8 and that the sub-
6 See, e. g., Ferguson v. Skrupa, 372 U. S. 726 (1963).
7 An earlier case deemed it "well settled" that the Takings Clause "is a
limitation on the power of the Federal government, and not on the States."
Pumpelly v. Green Bay Co., 13 Wall. 166, 177 (1872).
8 The Court held that a State "may not, by any of its agencies, disregard
the prohibitions of the Fourteenth Amendment. Its judicial authorities
may keep within the letter of the statute prescribing forms of procedure
in the courts and give the parties interested the fullest opportunity to be
heard, and yet it might be that its final action would be inconsistent with
that amendment. In determining what is due process of law regard must
406 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
stance of "the due process of law enjoined by the Fourteenth
Amendment requires compensation to be made or adequately
secured to the owner of private property taken for public
use under the authority of a State." 166 U. S., at 235, 236-
241. It applied the same kind of substantive due process
analysis more frequently identified with a better known case
that accorded similar substantive protection to a baker's
liberty interest in working 60 hours a week and 10 hours a
day. See Lochner v. New York, 198 U. S. 45 (1905).9
Later cases have interpreted the Fourteenth Amend-
ment's substantive protection against uncompensated depri-
vations of private property by the States as though it incor-
porated the text of the Fifth Amendment's Takings Clause.
See, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis,
480 U. S. 470, 481, n. 10 (1987). There was nothing problem-
atic about that interpretation in cases enforcing the Four-
teenth Amendment against state action that involved the
actual physical invasion of private property. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U. S. 419, 427-
433 (1982); Kaiser Aetna v. United States, 444 U. S., at
178-180. Justice Holmes charted a significant new course,
however, when he opined that a state law making
it "commercially impracticable to mine certain coal" had
"very nearly the same effect for constitutional purposes as
appropriating or destroying it." Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393, 414 (1922). The so-called "regulatory
be had to substance, not to form." Chicago, B. & Q. R. Co. v. Chicago,
166 U. S. 226, 234-235 (1897).
9 The Lochner Court refused to presume that there was a reasonable
connection between the regulation and the state interest in protecting the
public health. 198 U. S., at 60-61. A similar refusal to identify a suffi-
cient nexus between an enlarged building with a newly paved parking lot
and the state interests in minimizing the risks of flooding and traffic con-
gestion proves fatal to the city's permit conditions in this case under the
Court's novel approach.
Cite as: 512 U. S. 374 (1994) 407
STEVENS, J., dissenting
takings" doctrine that the Holmes dictum 10 kindled has an
obvious kinship with the line of substantive due process
cases that Lochner exemplified. Besides having similar an-
cestry, both doctrines are potentially open-ended sources of
judicial power to invalidate state economic regulations that
Members of this Court view as unwise or unfair.
This case inaugurates an even more recent judicial innova-
tion than the regulatory takings doctrine: the application of
the "unconstitutional conditions" label to a mutually benefi-
cial transaction between a property owner and a city. The
Court tells us that the city's refusal to grant Dolan a discre-
tionary benefit infringes her right to receive just compensa-
tion for the property interests that she has refused to dedi-
cate to the city "where the property sought has little or no
relationship to the benefit." 11 Although it is well settled
that a government cannot deny a benefit on a basis that
infringes constitutionally protected interests "especially
[one's] interest in freedom of speech," Perry v. Sindermann,
408 U. S. 593, 597 (1972) the "unconstitutional conditions"
doctrine provides an inadequate framework in which to ana-
lyze this case.12
10 See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at
484 (explaining why this portion of the opinion was merely "advisory").
"Ante, at 385. The Court's entire explanation reads: "Under the well -
settled doctrine of `unconstitutional conditions,' the government may not
require a person to give up a constitutional right —here the right to re-
ceive just compensation when property is taken for a public use —in ex-
change for a discretionary benefit conferred by the government where the
benefit sought has little or no relationship to the property."
12 Although it has a long history, see Home Ins. Co. v. Morse, 20 Wall.
445, 451 (1874), the "unconstitutional conditions" doctrine has for just as
long suffered from notoriously inconsistent application; it has never been
an overarching principle of constitutional law that operates with equal
force regardless of the nature of the rights and powers in question. See,
e. g., Sunstein, Why the Unconstitutional Conditions Doctrine is an Anach-
ronism, 70 B. U. L. Rev. 593, 620 (1990) (doctrine is "too crude and too
general to provide help in contested cases"); Sullivan, Unconstitutional
408 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
Dolan has no right to be compensated for a taking unless
the city acquires the property interests that she has refused
to surrender. Since no taking has yet occurred, there has
not been any infringement of her constitutional right to com-
pensation. See Preseault v. ICC, 494 U. S. 1, 11-17 (1990)
(finding takings claim premature because property owner
had not yet sought compensation under Tucker Act); Hodel
v. Virginia Surface Mining► & Reclamation Assn., Inc., 452
U. S. 264, 294-295 (1981) (no taking where no one "identified
any property ... that has allegedly been taken").
Even if Dolan should accept the city's conditions in ex-
change for the benefit that she seeks, it would not necessarily
follow that she had been denied "just compensation" since it
would be appropriate to consider the receipt of that benefit
in any calculation of "just compensation." See Pennsylva-
nia Coal Co. v. Mahon, 260 U. S., at 415 (noting that an "av-
erage reciprocity of advantage" was deemed to justify many
laws); Hodel v. Irving, 481 U. S. 704, 715 (1987) (such "'reci-
procity of advantage"' weighed in favor of a statute's consti-
Conditions, 102 Harv. L. Rev. 1415, 1416 (1989) (doctrine is "riven with
inconsistencies"); Hale, Unconstitutional Conditions and Constitutional
Rights, 35 Colum. L. Rev. 321, 322 (1935) ("The Supreme Court has sus-
tained many such exertions of power even after announcing the broad
doctrine that would invalidate them"). As the majority's case citations
suggest, ante, at 385, modern decisions invoking the doctrine have most
frequently involved First Amendment liberties, see also, e. g., Connick v.
Myers, 461 U. S. 138, 143-144 (1983); Elrod v. Burns, 427 U. S. 347, 361-363
(1976) (plurality opinion); Sherbert v. Verner, 374 U. S. 398, 404 (1963);
Speiser v. Randall, 357 U. S. 513, 518-519 (1958). But see Posadas de
Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, 345-346
(1986) ("[T]he greater power to completely ban casino gambling necessar-
ily includes the lesser power to ban advertising of casino gambling"). The
necessary and traditional breadth of municipalities' power to regulate
property development, together with the absence here of fragile and easily
"chilled" constitutional rights such as that of free speech, make it quite
clear that the Court is really writing on a clean slate rather than merely
applying "well -settled" doctrine. Ante, at 385.
Cite as: 512 U. S. 374 (1994) 409
STEVENS, J., dissenting
tutionality). Particularly in the absence of any evidence on
the point, we should not presume that the discretionary ben-
efit the city has offered is less valuable than the property
interests that Dolan can retain or surrender at her option.
But even if that discretionary benefit were so trifling that it
could not be considered just compensation when it has "little
or no relationship" to the property, the Court fails to explain
why the same value would suffice when the required nexus
is present. In this respect, the Court's reliance on the "un-
constitutional conditions" doctrine is assuredly novel, and
arguably incoherent. The city's conditions are by no means
immune from constitutional scrutiny. The level of scrutiny,
however, does not approximate the kind of review that would
apply if the city had insisted on a surrender of Dolan's First
Amendment rights in exchange for a building permit. One
can only hope that the Court's reliance today on First
Amendment cases, see ante, at 385 (citing Perry v. Sinder-
mann, supra, and Pickering► v. Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968)),
and its candid disavowal of the term "rational basis" to de-
scribe its new standard of review, see ante, at 391, do not
signify a reassertion of the kind of superlegislative power
the Court exercised during the Lochner era.
The Court has decided to apply its heightened scrutiny to
a single strand the power to exclude in the bundle of
rights that enables a commercial enterprise to flourish in an
urban environment. That intangible interest is undoubtedly
worthy of constitutional protection much like the grand-
mother's interest in deciding which of her relatives may
share her home in Moore v. East Cleveland, 431 U. S. 494
(1977). Both interests are protected from arbitrary state
action by the Due Process Clause of the Fourteenth Amend-
ment. It is, however, a curious irony that Members of the
majority in this case would impose an almost insurmountable
burden of proof on the property owner in the Moore case
410 DOLAN v. CITY OF TIGARD
STEVENS, J., dissenting
while saddling the city with a heightened burden in this
case. 13
In its application of what is essentially the doctrine of
substantive due process, the Court confuses the past with
the present. On November 13, 1922, the village of Euclid,
Ohio, adopted a zoning ordinance that effectively confiscated
75 percent of the value of property owned by the Ambler
Realty Company. Despite its recognition that such an ordi-
nance "would have been rejected as arbitrary and oppres-
sive" at an earlier date, the Court (over the dissent of
Justices Van Devanter, McReynolds, and Butler) upheld
the ordinance. Today's majority should heed the words of
Justice Sutherland:
"Such regulations are sustained, under the complex con-
ditions of our day, for reasons analogous to those which
justify traffic regulations, which, before the advent of
automobiles and rapid transit street railways, would
have been condemned as fatally arbitrary and unreason-
able. And in this there is no inconsistency, for while
the meaning of constitutional guaranties never varies,
the scope of their application must expand or contract
13 The author of today's opinion joined Justice Stewart's dissent in Moore
v. East Cleveland, 431 U. S. 494 (1977). There the dissenters found it
sufficient, in response to my argument that the zoning ordinance was an
arbitrary regulation of property rights, that "if the ordinance is a rational
attempt to promote `the city's interest in preserving the character of its
neighborhoods,' Young v. American Mini Theatres, [Inc.,] 427 U. S. 50,
71 (opinion of STEVENS, J.), it is ... a permissible restriction on the use of
private property under Euclid v. Ambler Realty Co., 272 U. S. 365, and
Nectow v. Cambridge, 277 U. S. 183." Id., at 540, n. 10. The dissent went
on to state that my calling the city to task for failing to explain the need
for enacting the ordinance "place[d] the burden on the wrong party."
Ibid. (emphasis added). Recently, two other Members of today's majority
severely criticized the holding in Moore. See United States v. Carlton,
512 U. S. 26, 40-42 (1994) (SCALIA, J., concurring in judgment); see also
id., at 39 (SCALIA, J., concurring in judgment) (calling the doctrine of sub-
stantive due process "an oxymoron").
Cite as: 512 U. S. 374 (1994) 411
SOUTER, J., dissenting
to meet the new and different conditions which are
constantly coming within the field of their operation.
In a changing world, it is impossible that it should be
otherwise." Village of Euclid v. Ambler Realty Co.,
272 U. S. 365, 387 (1926).
In our changing world one thing is certain: uncertainty
will characterize predictions about the impact of new urban
developments on the risks of floods, earthquakes, traffic con-
gestion, or environmental harms. When there is doubt con-
cerning the magnitude of those impacts, the public interest
in averting them must outweigh the private interest of the
commercial entrepreneur. If the government can demon-
strate that the conditions it has imposed in a land use permit
are rational, impartial and conducive to fulfilling the aims of
a valid land use plan, a strong presumption of validity should
attach to those conditions. The burden of demonstrating
that those conditions have unreasonably impaired the eco-
nomic value of the proposed improvement belongs squarely
on the shoulders of the party challenging the state action's
constitutionality. That allocation of burdens has served us
well in the past. The Court has stumbled badly today by
reversing it.
I respectfully dissent.
JUSTICE SOUTER, dissenting.
This case, like No llan v. California Coastal Comm'n, 483
U. S. 825 (1987), invites the Court to examine the relation-
ship between conditions imposed by development permits,
requiring landowners to dedicate portions of their land for
use by the public, and governmental interests in mitigating
the adverse effects of such development. No Ilan declared
the need for a nexus between the nature of an exaction of an
interest in land (a beach easement) and the nature of govern-
mental interests. The Court treats this case as raising a
further question, not about the nature, but about the degree,
of connection required between such an exaction and the
412 DOLAN v. CITY OF TIGARD
SOUTER, J., dissenting
adverse effects of development. The Court's opinion an-
nounces a test to address this question, but as I read the
opinion, the Court does not apply that test to these facts,
which do not raise the question the Court addresses.
First, as to the floodplain and greenway, the Court ac-
knowledges that an easement of this land for open space (and
presumably including the five feet required for needed creek
channel improvements) is reasonably related to flood control,
see ante, at 387, 392-393, but argues that the "permanent
recreational easement" for the public on the greenway is not
so related, see ante, at 393-395. If that is so, it is not be-
cause of any lack of proportionality between permit condition
and adverse effect, but because of a lack of any rational con-
nection at all between exaction of a public recreational area
and the governmental interest in providing for the effect of
increased water runoff. That is merely an application of Nol-
lan's nexus analysis. As the Court notes, "[i]f petitioner's
proposed development had somehow encroached on existing
greenway space in the city, it would have been reasonable to
require petitioner to provide some alternative greenway
space for the public." Ante, at 394. But that, of course,
was not the fact, and the city of Tigard never sought to jus-
tify the public access portion of the dedication as related to
flood control. It merely argued that whatever recreational
uses were made of the bicycle path and the 1-foot edge on
either side were incidental to the permit condition requiring
dedication of the 15-foot easement for an 8-foot-wide bicycle
path and for flood control, including open space requirements
and relocation of the bank of the river by some 5 feet. It
seems to me such incidental recreational use can stand or fall
with the bicycle path, which the city justified by reference to
traffic congestion. As to the relationship the Court exam-
ines, between the recreational easement and a purpose never
put forth as a justification by the city, the Court unsurpris-
ingly finds a recreation area to be unrelated to flood control.
Cite as: 512 U. S. 374 (1994) 413
SOUTER, J., dissenting
Second, as to the bicycle path, the Court again acknowl-
edges the "theor[etically]" reasonable relationship between
"the city's attempt to reduce traffic congestion by providing
[a bicycle path] for alternative means of transportation,"
ante, at 387, and the "correct" finding of the city that "the
larger retail sales facility proposed by petitioner will in-
crease traffic on the streets of the Central Business Dis-
trict," ante, at 395. The Court only faults the city for saying
that the bicycle path "could" rather than "would" offset the
increased traffic from the store, ante, at 396. That again, as
far as I can tell, is an application of No Ilan, for the Court
holds that the stated connection ("could offset") between
traffic congestion and bicycle paths is too tenuous; only if
the bicycle path "would" offset the increased traffic by some
amount could the bicycle path be said to be related to the
city's legitimate interest in reducing traffic congestion.
I cannot agree that the application of Nollan is a sound one
here, since it appears that the Court has placed the burden of
producing evidence of relationship on the city, despite the
usual rule in cases involving the police power that the gov-
ernment is presumed to have acted constitutionally.* Hav-
ing thus assigned the burden, the Court concludes that the
city loses based on one word ("could" instead of "would"),
and despite the fact that this record shows the connection
the Court looks for. Dolan has put forward no evidence that
*See, e. g., Goldblatt v. Hempstead, 369 U. S. 590, 594-596 (1962); United
States v. Sperry Corp., 493 U. S. 52, 60 (1989). The majority characterizes
this case as involving an "adjudicative decision" to impose permit condi-
tions, ante, at 391, n. 8, but the permit conditions were imposed pursuant
to Tigard's Community Development Code. See, e. g., § 18.84.040, App. to
Brief for Respondent B-26. The adjudication here was of Dolan's re-
quested variance from the permit conditions otherwise required to be im-
posed by the Code. This case raises no question about discriminatory, or
"reverse spot," zoning, which "singles out a particular parcel for different,
less favorable treatment than the neighboring ones." Penn Central
Transp. Co. v. New York City, 438 U. S. 104, 132 (1978).
414 DOLAN v. CITY OF TIGARD
SOUTER, J., dissenting
the burden of granting a dedication for the bicycle path is
unrelated in kind to the anticipated increase in traffic conges-
tion, nor, if there exists a requirement that the relationship
be related in degree, has Dolan shown that the exaction fails
any such test. The city, by contrast, calculated the in-
creased traffic flow that would result from Dolan's proposed
development to be 435 trips per day, and its Comprehensive
Plan, applied here, relied on studies showing the link be-
tween alternative modes of transportation, including bicycle
paths, and reduced street traffic congestion. See, e. g►., App.
to Brief for Respondent A-5, quoting City of Tigard's Com-
prehensive Plan ("'Bicycle and pedestrian pathway systems
will result in some reduction of automobile trips within the
community"'). No llan, therefore, is satisfied, and on that
assumption the city's conditions should not be held to fail a
further rough proportionality test or any other that might
be devised to give meaning to the constitutional limits. As
Members of this Court have said before, "the common zoning
regulations requiring subdividers to . . . dedicate certain
areas to public streets, are in accord with our constitutional
traditions because the proposed property use would other-
wise be the cause of excessive congestion." Pennell v. San
Jose, 485 U. S. 1, 20 (1988) (SCALIA, J., concurring in part
and dissenting in part). The bicycle path permit condition
is fundamentally no different from these.
In any event, on my reading, the Court's conclusions about
the city's vulnerability carry the Court no further than Nol-
lan has gone already, and I do not view this case as a suitable
vehicle for taking the law beyond that point. The right case
for the enunciation of takings doctrine seems hard to spot.
See Lucas v. South Carolina Coastal Council, 505 U. S. 1003,
1076 (1992) (statement Of SOUTER, J.).