The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_518/93_518.zd1

Text File | 1994-06-24 | 6.2 KB | 126 lines

SUPREME COURT OF THE UNITED STATES
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No. 93-518
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FLORENCE DOLAN, PETITIONER v. CITY OF
TIGARD
on writ of certiorari to the supreme court of
oregon
[June 24, 1994]

  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 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 11-12, 18, but
argues that the -permanent recreational easement- for
the public on the Greenway is not so related, see ante,
at 18-20.  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 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.-  Ante,
at 19.  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 one 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 five feet.  It seems to me such incidental recre-
ational 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.
  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 12, 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 20.  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 20-21.  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 conges-
tion 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 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., 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 commu-
nity'-).  Nollan, therefore, is satisfied, and on that as-
sumption 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. __, __ (1992) (state-
ment of Souter, J.).