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 ofland (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 congestion in the city's
Central Business District. She appealed the commission's denial of
her request for variances from these standards to the Land Use
Board of Appeals (L UBA), alleging that the land dedication
requirements were not related to the proposed development and
therefore 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 impact of increased traffic from the development
and facilitating the provision 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 government where the property sought has little or
no relationship to the benefit. In evaluating Dolan's claim, it
must be determined whether an "essential 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
exactions 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
congestion in the district are legitimate public purposes; and a
nexus exists between the first purpose and limiting development
within the creek's
375
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 required, but 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. This is essentially the "reasonable 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 required 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 requirement
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'CONNOR, 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
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
General 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,
Michael 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 General,
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 Conservancy et al. by
Andrea C.
Ferster,
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
377
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 proposed development.
I
The State of Oregon enacted a comprehensive land use management
program in 1973. Ore. Rev. Stat. §§ 197.005197.860 (1991). The
program required all Oregon cities and counties to adopt new
comprehensive land use plans that were consistent with the
statewide planning goals. §§ 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. §§
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 Central Business
District to comply with a 15% open space and landscaping
requirement, which limits total site coverage, including all
structures and paved parking, to 85% of the parcel. 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 Foundation 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
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 pedestrian pathways where provided for
in the pedestrian/bicycle pathway plan.1
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 petitioner'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 continued urbanization would exacerbate
these flooding problems. 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 structures
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 waterways 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 designated bikepaths or adjacent to a designated
greenway/open space/park. Specific items to be addressed [include]:
(i) Provision of efficient, convenient and continuous pedestrian
and bicycle transit circulation systems, linking developments by
requiring dedication and construction of pedestrian and bikepaths
identified in the comprehensive plan. If direct connections cannot
be made, require that funds in the amount of the construction cost
be deposited into an account for the purpose of constructing
paths." App. to Brief for Respondent B-33 to B-34.
379
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 parking lot. The
existing store, located on the opposite side of the parcel, would
be razed in sections as construction progressed 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 businesses and to provide more parking. The
proposed expansion 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 petitioner's
permit application subject to conditions imposed by the city's CDC.
The CDC establishes the following standard 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
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 pathway.2 The dedication
required by that condition encompasses 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: "1. 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
decisionmaking authority can approve, approve with modifications,
or deny a variance request:
"(1) The proposed variance will not be materially detrimental to
the purposes of this title, be in conflict with the policies of the
comprehensive
381
tive mitigating measures to offset the expected impacts of her
proposed development, as allowed under the CDC, petitioner 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 projected
impacts of petitioner's project. First, the Commission 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 Tigard 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 pathway system as
an alternative means of transportation "could
plan, to any other applicable policies and standards, and to
other properties 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 applicant 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 traffic, 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 Brieffor Respondent B-49 to B-50.
382
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 floodplain
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 Commission 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 responsibility for surveying and marking the
floodplain area from petitioner to the city's engineering
department.
Id., at G-7.
Petitioner appealed to the Land D se Board of Appeals (L DBA) on
the ground that the city's dedication requirements 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, L DBA assumed
that the city's findings about the impacts of the proposed
development were supported by substantial evidence. Dolan v.
Ti
gard, LDBA 91-161 (Jan. 7, 1992), reprinted at App. to
Pet. for Cert. D-15, n. 9. Given the undisputed fact that the
proposed larger building and paved parking area would increase the
amount of impervious surfaces and the runoff into Fanno Creek, L
DBA concluded that "there is a 'reasonable relationship' between
the proposed development and the requirement to dedicate land along
Fanno Creek for a greenway."
Id., at D-16. With respect to
the pedestrian/bicycle pathway, L DBA noted the Commission's
finding that a signifi-
383
cantly larger retail sales building and parking lot would
attract larger numbers of customers and employees and their
vehicles. It again found a "reasonable relationship" between
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 petitioner's
contention that in
Nollan v.
California Coastal
Comm'n, 483 U. S.
825 (1987), we had abandoned the "reasonable 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
Nollan Court abandoned the
"reasonably related" test. 317 Ore., at 118, 854 P. 2d, at 442.
Instead, the court read
Nollan 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 certiorari, 510 U. S. 989 (1993), because of an alleged
conflict between the Oregon Supreme Court's decision and our
decision 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 variance 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
cago, 166
U. S. 226, 239 (1897), provides: "[N]or shall private property
be taken for public use, without just compensation." 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 extent 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 'taking' 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.
Chicago, 166 U. S. 226, 239
(1897)").
385
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
"substantially 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 determinations
classifying entire areas of the city, whereas here the city made an
adjudicative decision to condition petitioner'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 parcel, but a requirement that she deed portions of
the property to the city. In
Nollan, 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 righthere 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. 563, 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 currently 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
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 required 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.
Nollan, 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 development. We
were not required to reach this question in
Nollan, because
we concluded that the connection did not meet even the loosest
standard.
Id., at 838. Here, however, we must decide this
question.
A
We addressed the essential nexus question in
Nollan.
The California Coastal Commission demanded a lateral public
easement across the N ollans' 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 easement was
designed to connect two public beaches that were separated by the
Nollans' property. The Coastal Commission had asserted that the
public easement condition was imposed to promote the legitimate
state interest of diminishing the "blockage of the view of the
ocean" caused by construction of the larger house.
We agreed that the Coastal Commission's concern with protecting
visual access to the ocean constituted a legitimate
387
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 visual access
to the ocean and a permit condition requiring lateral 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 purpose 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.
Atkinson, 121 N. H. 581, 584, 432 A.
2d 12, 14-15 (1981).
No such gimmicks are associated with the permit conditions
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.
Agins, 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 retail store and to pave her now-gravel
parking lot, thereby expanding the impervious surface on the
property and increasing the amount of storm water runoff into Fanno
Creek.
The same may be said for the city's attempt to reduce traffic
congestion by providing for alternative means oftransportation. In
theory, a pedestrian/bicycle pathway provides a useful alternative
means of transportation for workers and shoppers: "Pedestrians and
bicyclists occupying dedicated
388
spaces for walking and/or bicycling ... remove potential
vehicles from streets, resulting in an overall improvement in total
transportation system flow." A. Nelson, Public Provision 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 Surface 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 projected impact
of petitioner's proposed development.
Nollan, 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 effectuation of a substantial
government purpose' "). Here the Oregon Supreme Court deferred to
what it termed the "city's unchallenged factual findings"
supporting the dedication conditions and found them to be
reasonably related to the impact 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 greenway area. The
city relies on the Commission's rather tentative findings that
increased storm water flow from petitioner'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
389
the site is related to the applicant's plan to intensify
development 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
constitutionally 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 necessary
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
Ill. 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.
Atkinson, 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
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 defense of police
regulations."
Id., at 381, 176 N. E. 2d, at 802. We do not
think the Federal Constitution requires such exacting scrutiny,
given the nature of the interests involved.
A number of state courts have taken an intermediate position,
requiring the municipality to show a "reasonable relationship"
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 between 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
simply 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.
Bloomington, 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. 63, 69, 264 A. 2d 910, 913 (1970).
391
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
RationalNexus Constitutional Analysis of Development Exactions, 69
B. U. L. Rev. 823 (1989); see also
Parks v.
Watson,
716
We think the "reasonable relationship" test adopted by a
majority of the state courts is closer to the federal
constitutional norm than either of those previously discussed. But
we do not adopt it as such, partly because the term "reasonable
relationship" seems confusingly similar to the term "rational
basis" which describes the minimal level of scrutiny under the
Equal Protection Clause of the Fourteenth Amendment. We think a
term such as "rough proportionality" best encapsulates what we hold
to be the requirement of the Fifth Amendment. No precise
mathematical calculation is required, but the city must make some
sort of individualized determination that the required dedication
is related both in nature and extent to the impact of the proposed
development.8
8JUSTICE 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 Cleveland, 431 U. S. 494 (1977), in
which we struck down a housing ordinance
392
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 regulation that
heretofore warranted a strong presumption of constitutional
validity."
Post, at 402. But simply denominating 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 premises 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
Servo 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
Amendment, should be relegated to the status of a poor relation in
these comparable circumstances. We turn now to analysis 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.
393
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 Business 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 bundle 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 interest in reducing flooding
problems along Fanno Creek, and the city has not attempted to make
any individualized determination 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
controlling flood hazards. It further asserts that unlike the
residential property at issue in
Nollan, 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 Constitution extends special safeguards to the privacy of
the home' "). The city maintains that "[t]here is nothing to
suggest that preventing [petitioner] from prohibiting [the
easements] will unreasonably impair the value of [her] property as
a [retail store]."
PruneYard Shopping Center v.
Robins, 447 U.
S. 74,83 (1980).
394
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
PruneYard. In
PruneYard, we held that a major private shopping center that
attracted more than 25,000 daily patrons had to provide access to
persons exercising 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 interference
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 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 either on her property or elsewhere. See
Nollan, 483 U. S., at 836 ("Although such a requirement,
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 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-
395
lies do not show the required reasonable relationship between
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 traffic 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 reasonable exactions to avoid excessive
congestion from a proposed 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." 10
As Justice Peterson of the Supreme Court of Oregon explained 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
9The 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.
10 In rejecting petitioner's request for a variance from the
pathway dedication 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 requires the city to implement its
policy by condemnation unless the required relationship between
petitioner's development and added traffic is shown.
396
support of the dedication for the pedestrian/bicycle pathway
beyond the conclusory statement that it could offset some of the
traffic demand generated.
IV
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 congestion, 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] warrant achieving the desire by a shorter cut
than the constitutional 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 inconsistent 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 mountain 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 substantial 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-
397
ertheless agreed to grant Dolan's application if she will comply
with two conditions, each of which admittedly will mitigate the
adverse effects of her proposed development. The disputed question
is whether the city has violated the Fourteenth 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 variance even
when it can rightfully deny the application outright. 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 description 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.
I
Candidly acknowledging the lack of federal precedent for its
exercise in rulemaking, the Court purports to find guidance in 12
"representative" state court decisions. To do so is certainly
appropriate.1 The state cases the Court consults, 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
Nollan 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
gestions.
Ante, at 387-388.2 The Court goes on, however,
to erect a new constitutional hurdle in the path of these
conditions. 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" between 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 establishing the
constitutionality of its conditions by making an "individualized
determination" that the condition in question 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
Nollan's "essential nexus" requirement. 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 property's use violated
Nebraska Constitution); J.
E. D. Associates, Inc. v.
Atkinson, 121 N. H. 581, 583-585, 432 A. 2d 12, 14-15 (1981)
(state constitutional grounds). One case pur-
2 In
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 requirement,
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 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."
Ibid.
399
porting to apply the strict "specifically and uniquely
attributable" test established by
Pioneer Trust &
Savings Bank v.
Mount Prospect, 22 Ill. 2d 375,176 N.
E. 2d 799 (1961), nevertheless 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 regulation 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
Nollan'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 exchange 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.
Bloomington, 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) (dedication
requirement only triggered when developer
chooses
400
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 channel 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 extent 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 parcel (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. Instead, 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
401
into discrete segments and attempt to determine whether rights
in a particular segment have been entirely abrogated."
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 exclude
others undoubtedly constitutes a significant infringement 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 Professor Johnston has
noted:
"The subdivider is a manufacturer, processer, and marketer of a
product; land is but one of his raw materials. 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 purposes" and that "[t]here is
no basis for treating the less than 2% of petitioners' coal as a
separate parcel of property."
402
not defending hearth and home against the king's intrusion, but
simply attempting to maximize his profits from the sale of a
finished product. As applied to him, subdivision control exactions
are actually business regulations." Johnston, Constitutionality of
Subdivision Control 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 constitutional
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 authorized
planning objectives, its action need be invalidated only in those
extreme and presumably rare cases where the burden 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 isolate 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 deference" of
Billings
Properties, Inc. v.
Yellowstone County, 144 Mont. 25,
394 P. 2d 182 (1964). 52 Cornell L. Q., at 917.
403
elude 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 considerations of a condition's nature
or germaneness only if the developer establishes that a concededly
germane condition is so grossly disproportionate to the proposed
development's adverse effects that it manifests motives other than
land use regulation on the part of the city. 5 The heightened
requirement 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 floodplain 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
while the city adequately established the traffic increase that
the proposed development would generate, it failed to quantify 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 existing and the proposed use of
the property as a retail store, it seems likely that potential
customers "trampling along petitioner'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 storage 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 proceedings 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-
405
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 micromanage state decisions
of this kind, it is indeed extending its welcome mat to a
significant new class of litigants. Although 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 consequential 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
Chicago, B. & Q.
R. Co. v.
Chicago,
166 U. S. 226,
239 (1897), for the proposition that the Takings Clause of the
Fifth Amendment is "applicable to the States through the Fourteenth
Amendment."
Ante, at 383. That opinion, however, contains 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,s 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
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, 236241. 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 Amendment's
substantive protection against uncompensated deprivations of
private property by the States as though it incorporated 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 problematic about that interpretation in
cases enforcing the Fourteenth Amendment against state action that
involved the actual physical invasion of private property. See
Loretto v.
Teleprompter Manhattan CATV Corp.,
458 U. S. 419,
427433 (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 sufficient nexus between an enlarged building
with a newly paved parking lot and the state interests in
minimizing the risks of flooding and traffic congestion proves
fatal to the city's permit conditions in this case under the
Court's novel approach.
407
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 ancestry, 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 innovation
than the regulatory takings doctrine: the application of the
"unconstitutional conditions" label to a mutually beneficial
transaction between a property owner and a city. The Court tells us
that the city's refusal to grant Dolan a discretionary benefit
infringes her right to receive just compensation for the property
interests that she has refused to dedicate 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 analyze 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").
11
Ante, at 385. The Court's entire explanation reads:
"Under the wellsettled 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."
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 Anachronism, 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 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 compensation. 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 exchange
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
Pennsylvania Coal
Co. v.
Mahon, 260 U. S., at 415 (noting that an "average
reciprocity of advantage" was deemed to justify many laws);
Hodel v.
Irving, 481 U. S. 704, 715 (1987)
(such" 'reciprocity 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 sustained 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
necessarily 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.
409
tutionality). Particularly in the absence of any evidence on the
point, we should not presume that the discretionary benefit 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 "unconstitutional
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.
Sindermann, 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 describe 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 grandmother'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 Amendment. 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
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 ordinance "would have been rejected as
arbitrary and oppressive" 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 conditions 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 unreasonable. 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 substantive
due process "an oxymoron").
411
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 congestion, or
environmental harms. When there is doubt concerning the magnitude
of those impacts, the public interest in averting them must
outweigh the private interest of the commercial entrepreneur. If
the government can demonstrate 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
economic 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
Nollan v.
California Coastal Comm'n,
483 U. S. 825 (1987), invites the Court to examine the
relationship 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.
Nollan declared the need for a
nexus between the nature of an exaction of an interest in land (a
beach easement) and the nature of governmental 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
adverse effects of development. The Court's OpInIOn announces 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 acknowledges
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
because of any lack of proportionality between permit condition and
adverse effect, but because of a lack of any rational connection 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
Nollan'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 justify 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
i-foot edge on either side were incidental to the permit condition
requiring dedication of the i5-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 examines,
between the recreational easement and a purpose never put forth as
a justification by the city, the Court unsurprisingly finds a
recreation area to be unrelated to flood control.
413
Second, as to the bicycle path, the Court again acknowledges 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 increase traffic on the
streets of the Central Business District,"
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
Nollan, 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 government is
presumed to have acted constitutionally. * Having 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 conditions,
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
requested variance from the permit conditions otherwise required to
be imposed 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
the burden of granting a dedication for the bicycle path is
unrelated in kind to the anticipated increase in traffic
congestion, 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
increased 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 between
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 Comprehensive Plan ("
'Bicycle and pedestrian pathway systems will result in some
reduction of automobile trips within the community"').
Nollan, 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 otherwise 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
Nollan
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.).
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