Dolan v. Tigard: The Myth and Reality of Its Impact on Takings Jurisprudence and Land Use Regulation

Authors

Stephen Truesdale Carney

First Page

329

Document Type

Note

Abstract

In June of 1994, the evolution of constitutional law took another small step forward when the United States Supreme Court decided Dolan v. City of Tigard. This decision has specific implications for the fields of environmental and land-use law. While many see those implications as deleterious to environmental concerns, others see them as a necessary clarification in a narrow but previously vague area of law. In Dolan, the issue before the court was whether the city's demand that the petitioner dedicate her property along a floodplain to public use as a condition for a building permit approval violated the Fifth Amendment Takings Clause. In this five to four decision, the Court struck down the condition as it applied to the petitioner. In so doing, the Court refined the test for constitutionality of such conditions and shifted the burden of passing the test to the municipality. The test, as explained in Dolan, added a new requirement to that established in Nollan v. California Coastal Commission. The Nollan test required an "essential nexus" between the legitimate state interest and the condition the government sought to impose. In Dolan, the Court added that the condition must also be roughly proportionate in both nature and extent to the impact such condition seeks to ameliorate. This decision clarifies what municipalities can and cannot do with respect to conditions that are tacked on to development permits. The Nollan decision left open the issue of the extent to which a condition must relate to its purpose. Tigard's actions did meet the "essential nexus" standard, and that allowed the Court to discuss the necessary relationship between such conditions and the purposes they intend to serve. Part II of this note lays out the narrow lineage of takings cases that shed light on, and lead up, to Dolan. Part III discusses the facts, procedural history, and holding of Dolan. Part IV gives an analysis of the holding's applicability to future takings cases, the level of scrutiny set forth for such takings cases, and the ramifications the decision will have for municipalities attempting to employ similar regulatory schemes to those called into question in Dolan. Finally, Part V concludes the discussion by suggesting that the implications of Dolan should not be feared.

Recommended Citation

Stephen Truesdale Carney, Dolan v. Tigard: The Myth and Reality of Its Impact on Takings Jurisprudence and Land Use Regulation, 7 St. Thomas L. Rev. 329 (1995).
Available at: https://scholarship.stu.edu/stlr/vol7/iss2/5