Property Rights, Dolan v. Tigard

[A18]

Dolan v. Tigard, 512 U.S. 374 (1994)

BACKGROUND: An owner of a city lot applied for a building permit to expand the store and parking lot. The city would grant the permit only if the owner agreed to dedicate a portion of the lot as a greenway and a second portion as a bike path. The owner filed a claim that this was a violation of the Fifth Amendment--a taking "without just compensation."

JUDGES: 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. SOUTER, J., filed a dissenting opinion.

OPINION: 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.

...

The judgment of the Supreme Court of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

[Blue Rectangle]

What if the city had passed a law requiring all properties to include greenways?  Would that be allowed?

[David S]

This is another example of the liberal justices on the Supreme Court demonstrating their collectivist belief that individual rights can be sacrificed in the name of the common good. Furtunately justice prevailed in this case.

[Emsworth]

The decision was constitutionally unsound. The whole ruling was based on the 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."

Yet, such a doctrine is decidedly incorrect. The government may, for example, require a person to give up his right to bear arms in return for access to a government building. It may compel a student to give up his freedom from unreasonable searches and seizures in return for a school locker. It may demand that a person give up his freedom of speech in return for accepting public employment. In short, it is perfectly permissible for the government to grant a discretionary benefit on the general condition that the recipient surrender constitutional rights connected with that benefit.

As Janice Rogers Brown wrote, "to the extent the doctrine of unconstitutional conditions purports to hold that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold the benefit altogether, it seems more a figment of academic imagination than reality" (Loder v. Glendale).

I note that the benefit must be truly a discretionary one, a specific privilege for a specific person. Access to courts of law is not a discretionary benefit, for example.

In this particular case, the city wished to grant a discretionary benefit: planning permission. In return for such permission, it is perfectly entitled to demand a waiver of rights under the takings clause. It is wholly entitled to require that the owner dedicate a portion of the lot to greenways or bike paths.

I presume, of course, that planning permission is a discretionary benefit. I am making no argument about the constitutionality or unconstitutionality of zoning laws. But if we accept that general zoning laws are permissible (as the Supreme Court has done), then this particular decision is unsound.

[A18]

There is a line that must be drawn. May the state force an individual to convert to Christianity in order to seek state employment?

The government was using this condition to blackmail her. It had nothing to do with her situation.

[Emsworth]

There is a line that must be drawn. May the state force an individual to convert to Christianity in order to seek state employment?

Certainly, a line must be drawn. Here (unfortunately) we must accept some judicial discretion. As I stated earlier, the condition must be somehow related to the benefit sought. Activities unrelated to the benefit are certainly not subject to the imposition of conditions.

[A18]

Here in Virginia, Patrick Henry College needed a right-hand turn lane into its property. The government said that it would allow the college to have the turn lane only if it would pave the lane, then donate the land under the lane to the state highway system. The college gladly complied, recognizing the burden the lane was placing on the highway system.

That's fine. But Mrs. Dolan's case for quite different. The government was taking her land in a way that was absolutely disconnected from her intended use.

The government could take her land under the power of eminent domain if they would pay her fair market value, but they wanted to pay her nothing. It was a clear violation of the Takings Clause.

[Emsworth]

But Mrs. Dolan's case for quite different. The government was taking her land in a way that was absolutely disconnected from her intended use.

A requirement for the provision of a bike path alongside a parking lot, in return for planning permission, does not strike me as a condition absolutely disconnected with the intended use. In cases such as these, I would tend to defer more to the judgment of the legislative body.

[A18]

What is the connection?

Welcome to the dark side, BTW.

[Emsworth]

Welcome to the dark side, BTW.

Thanks!

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It allows people who drive bicycles to access the store. It encourages people who wish to shop at this store to conserve gasoline and to be more environmentally friendly.

(Hmm, I suppose that, having made the above statement, I will soon be accused of being a RINO.)

[A18]

By that logic, virtually anything is connected. Only a very minute percentage of customers would use the bike trail.

The bottom line is, she wasn't placing any burden on the public. They were just trying to take part of her property without paying her fair value.

[muon2]

As I understand the situation in Tigard, Dolan was not seeking zoning approval, but a building permit. These are quite different powers of a municipaity. The granting of building permits is a ministerial rather than a legislative act. For such acts there must be a clear nexus that is uniformly applied to other similar situations. The City of Tigard was making a unique demand that was innappropriate in the given context.

For instance, in my county all building permits are conditioned on providing stormwater management on their land to compensate for the increase in impervious surface. This requirement has withstood court challenges. Cash donations to schools for residential construction also are acceptable. However, donations to schools from commercial property developers are unacceptable exactions, since there is no nexus.