QuestionedAs of: Jul 09, 2013

FLORENCE DOLAN, PETITIONER v. CITY OF TIGARD

No. 93-518

SUPREME COURT OF THE UNITED STATES

512 U.S. 374; 114 S. Ct. 2309; 129 L. Ed. 2d 304; 1994 U.S. LEXIS 4826; 62 U.S.L.W.4576; 38 ERC (BNA) 1769; 94 Cal. Daily Op. Service 4747; 94 Daily Journal DAR

8803; 24 ELR 21083; 8 Fla. L. Weekly Fed. S 331

March 23, 1994, ArguedJune 24, 1994, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARITO THE SUPREME COURT OF OREGON.

DISPOSITION: 317 Ore. 110, 854 P. 2d 437, reversedand remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Petitioner appealeddecision by the Supreme Court of Oregon that held thatrespondent city's decision to grant a permit to petitioner,conditioned on petitioner dedicating her land torespondent, was not a taking under U.S. Const. amend. Vbecause the dedication was reasonably related to theexpansion of petitioner's business.

OVERVIEW: Petitioner applied to respondent city for apermit to redevelop her business. Respondent granted thepermit conditioned on petitioner dedicating some of herproperty to respondent in furtherance of its land use plan.Petitioner brought suit on the grounds that respondent'sdedication requirements were not related to the proposeddevelopment, and therefore, constituted a taking without

just compensation under the U.S. Const. amend. V. TheSupreme Court of Oregon found that the conditions werereasonably related to the proposed development. Onappeal, the Court held that there must be an essentialnexus existing between the legitimate state interest andthe permit condition by the respondent. The Court heldthat if a nexus existed, then exactions imposed byrespondent must be roughly proportionate to theprojected impact of the proposed development.Respondent's conditions were not reasonably related tothe impact of the proposed development, and therefore,the judgment was overturned.

OUTCOME: The court reversed the judgment becauserespondent city failed to establish that in issuing a permitto petitioner, its property dedication requirement wasroughly proportionate to its land use plan and the impactof petitioner's proposed development.

LexisNexis(R) Headnotes

Page 1

Real Property Law > Zoning & Land Use >Comprehensive PlansTransportation Law > Private Vehicles > Bicycles[HN1] See Tigard, Or., Community Development Code §18.86.040.A.1.b.

Environmental Law > Zoning & Land Use >Conditional Use Permits & VariancesReal Property Law > Zoning & Land Use > SpecialPermits & Variances[HN2] Variances are granted only where it can be shownthat, owing to special circumstances related to a specificpiece of the land, the literal interpretation of theapplicable zoning provisions would cause an undue orunnecessary hardship unless the variance is granted.

Governments > Local Governments > Ordinances &RegulationsReal Property Law > Zoning & Land Use >Comprehensive PlansReal Property Law > Zoning & Land Use > SpecialPermits & Variances[HN3] See Tigard, Or., Community Development Code §18.134.050.

Constitutional Law > Bill of Rights > FundamentalRights > Eminent Domain & TakingsConstitutional Law > Bill of Rights > State Application[HN4] The Takings Clause, U.S. Const. amend. V, madeapplicable to the states through the U.S. Const. amend.XIV, provides nor shall private property be taken forpublic use, without just compensation. One of theprincipal purposes of the Takings Clause is to bargovernment from forcing some people alone to bearpublic burdens which, in all fairness and justice, shouldbe borne by the public as a whole.

Constitutional Law > Bill of Rights > FundamentalRights > Eminent Domain & TakingsGovernments > Local Governments > LicensesReal Property Law > Ownership & Transfer > TransferNot By Deed > Dedication > General Overview[HN5] The right to exclude others is one of the mostessential sticks in the bundle of rights that are commonlycharacterized as property.

Constitutional Law > Bill of Rights > Fundamental

Rights > Eminent Domain & TakingsEnvironmental Law > Zoning & Land Use >Constitutional LimitsReal Property Law > Zoning & Land Use >Constitutional Limits[HN6] The authority of state and local governments toengage in land use planning has been sustained againstconstitutional challenge. Government hardly could go onif to some extent values incident to property could not bediminished without paying for every such change in thegeneral law.

Governments > Local Governments > PropertyReal Property Law > Inverse Condemnation >Regulatory TakingsReal Property Law > Zoning & Land Use >Comprehensive Plans[HN7] A land use regulation does not effect a taking if itsubstantially advances legitimate state interests and doesnot deny an owner economically viable use of his land.

Constitutional Law > Bill of Rights > FundamentalRights > Eminent Domain & TakingsGovernments > Local Governments > PropertyReal Property Law > Ownership & Transfer > PublicEntities[HN8] Under the well-settled doctrine of"unconstitutional conditions," the government may notrequire a person to give up a constitutional right inexchange for a discretionary benefit conferred by thegovernment where the benefit sought has little or norelationship to the property.

Real Property Law > Eminent Domain Proceedings >General OverviewReal Property Law > Zoning & Land Use > JudicialReview[HN9] In evaluating a takings claim, the court must firstdetermine whether the essential nexus exists between thelegitimate state interest and the permit condition exactedby the city. If the court finds that a nexus exists, it mustthen decide the required degree of connection betweenthe exactions and the projected impact of the proposeddevelopment.

Constitutional Law > Bill of Rights > FundamentalRights > Eminent Domain & Takings

Page 2512 U.S. 374, *; 114 S. Ct. 2309, **;

129 L. Ed. 2d 304, ***; 1994 U.S. LEXIS 4826

[HN10] The prevention of flooding and the reduction oftraffic are legitimate public purposes.

Governments > Local Governments > PropertyReal Property Law > Eminent Domain Proceedings >General OverviewReal Property Law > Zoning & Land Use >Comprehensive Plans[HN11] The court must determine whether the degree ofthe exactions demanded by a city's permit conditionsbears the required relationship to the projected impact ofa party's proposed development.

Governments > Local Governments > Police PowerReal Property Law > Eminent Domain Proceedings >DefensesReal Property Law > Eminent Domain Proceedings >Procedure[HN12] In some states, very generalized statements as tothe necessary connection between the required dedicationand the proposed development seem to suffice. Otherstate courts require a very exacting correspondence,described as the specific and uniquely attributable test. Anumber of state courts have taken an intermediateposition, requiring the municipality to show a reasonablerelationship between the required dedication and theimpact of the proposed development. The United StatesSupreme Court thinks the reasonable relationship testadopted by a majority of the state courts is closer to thefederal constitutional norm than either of thosepreviously discussed. But the Supreme Court does notadopt it as such. The Supreme Court thinks a term such as"rough proportionality" best encapsulates the requirementof the U.S. Const. amend. V.

Constitutional Law > Equal Protection > Scope ofProtectionReal Property Law > Eminent Domain Proceedings >General OverviewReal Property Law > Zoning & Land Use >Comprehensive Plans[HN13] No precise mathematical calculation is requiredfor the rough proportionality test, but a city must makesome sort of individualized determination that therequired dedication is related both in nature and extent tothe impact of the proposed development.

Real Property Law > Eminent Domain Proceedings >General Overview[HN14] A strong public desire to improve the publiccondition will not warrant achieving the desire by ashorter cut than the constitutional way of paying for thechange.

DECISION:

City held not to have shown rough proportionalityrequired, under Fifth Amendment's takings clause, tocondition building permit's approval on dedication ofportions of lot to city for greenway and pedestrian/bicyclepathway.

SUMMARY:

The owner of a city lot in Oregon, on which sheoperated a retail store, applied to the city for a buildingpermit for a bigger store, a paved and expanded parkingarea, and an additional structure for complementarybusinesses. The city's planning commission, pursuant tothe city's community development code, granted theapplication subject to two conditions: that the ownerdedicate to the city (1) as a greenway the portion of herlot within the 100-year floodplain of a creek whichflowed through one corner and along one boundary of thelot; and (2) as a pedestrian/bicycle pathway an additional15-foot strip of land adjacent to the floodplain. Theowner requested a variance, but the commission deniedthe request and made findings to the effect that (1) it wasreasonable to assume that customers and employees ofthe future uses of the site could utilize apedestrian/bicycle pathway adjacent to the developmentfor transportation and recreational needs; (2) it wasreasonable to expect that some users of the site's plannedparking for bicycles would use the pedestrian/bicyclepathway if it were constructed; (3) creation of aconvenient, safe pedestrian/bicycle pathway system as analternative means of transportation could offset some ofthe traffic demand on nearby streets and lessen theincrease in traffic congestion; and (4) based on ananticipated increase in stormwater flow, the requirementof dedication of the floodplain was related to the plan tointensify development. The commission's order wasapproved by the city council, subject to a minormodification regarding surveying. On appeal to a landuse board of appeals, the owner claimed that thededication requirements were not related to the proposeddevelopment, and therefore constituted an

Page 3512 U.S. 374, *; 114 S. Ct. 2309, **;

129 L. Ed. 2d 304, ***; 1994 U.S. LEXIS 4826

uncompensated taking of property in violation of thetakings clause of the Federal Constitution's FifthAmendment. The board, however, rejecting the takingsclaim, (1) assumed that the city's findings were supportedby substantial evidence; and (2) expressed the view thatthere was a reasonable relationship between (a) theproposed development and the requirement to dedicateland along the creek for a greenway, and (b) thealleviation of the impacts of increased traffic and thefacilitation of a pedestrian/bicycle pathway as analternative means of transportation. The Oregon Court ofAppeals, in affirming, rejected the owner's contentionthat the United States Supreme Court had abandoned thetest of reasonable relationship in favor of a stricter test ofessential nexus (113 Or App 162, 832 P2d 853). TheOregon Supreme Court, in affirming, expressed the viewthat both permit conditions (1) had an essential nexus tothe development of the proposed site, and (2) therefore,were reasonably related to the impact of the expansion ofthe owner's business (317 Or 110, 854 P2d 437).

On certiorari, the United States Supreme Courtreversed and remanded. In an opinion by Rehnquist, Ch.J., joined by O'Connor, Scalia, Kennedy, and Thomas,JJ., it was held that (1) in order to decide whetherconditions requiring the dedication of land to a city,which conditions are imposed by the city on its approvalof a lot owner's building permit, constitute anuncompensated taking in violation of the FifthAmendment's takings clause, (a) a court must firstdetermine whether an essential nexus exists betweenlegitimate state interests and the permit conditions, and(b) if the court finds that a nexus exists, then the courtmust determine whether the city has shown a roughproportionality between the exactions and the projectedimpact of the proposed development; and (2) as to thecase at hand, even though an essential nexus existedbetween legitimate state interests and the two conditionsin question, the commission's findings did not satisfy therequirement or test of showing rough proportionality,because (a) the city had never said why a publicgreenway, as opposed to private one, was required in theinterest of flood control, and (b) the city had not met itsburden on demonstrating that the additional number ofvehicle and bicycle trips generated by the developmentreasonably related to the pedestrian/bicycle pathwaycondition.

Stevens, J., joined by Blackmun and Ginsburg, JJ.,dissenting, expressed the view that (1) the Supreme

Court's test of rough proportionality (a) focused toonarrowly on a property owner's right to exclude others,(b) imposed a novel burden of proof on a cityimplementing an admittedly valid, comprehensive landuse plan, and (c) resurrected a rejected species ofsubstantive due process analysis; and (2) even under theSupreme Court's new test, the defects found by the courtin the city's case were, at most, nothing more thanharmless error.

Souter, J., dissenting, expressed the view that, whilethe Supreme Court announced a test as to the degree ofconnection required between governmental exaction of aninterest in land and the adverse effects of development,the court (1) did not apply that test to the facts of the caseat hand, which did not raise the question that the courtaddressed; (2) improperly placed on the city the burdenof producing evidence of relationship; and (3) havingthus assigned the burden of proof, improperly concludedthat the city lost.

LAWYERS' EDITION HEADNOTES:

[***LEdHN1]

EMINENT DOMAIN §98

taking -- building permit conditions -- dedication ofland --

Headnote:[1A][1B][1C][1D][1E][1F][1G][1H ][1I]

Even though an essential nexus exists betweenlegitimate state interests and two conditions imposed by acity on its approval of a lot owner's building permit for abigger retail store, a paved and expanded parking area,and an additional structure for complementarybusinesses--which conditions require the owner todedicate to the city (1) as a greenway the portion of herlot within the 100-year floodplain of a creek which flowsthrough one corner and along one boundary of the lot,and (2) as a pedestrian/bicycle pathway an additional15-foot strip of land adjacent to the floodplain--forpurposes of determining whether the two conditionsconstitute an uncompensated taking in violation of thetakings clause of the Federal Constitution's FifthAmendment, some findings of the city's planningcommission that are relied upon by the city do not satisfythe takings requirement or test of showing roughproportionality between the conditions and the projectedimpact of the proposed development, because (1) the city

Page 4512 U.S. 374, *; 114 S. Ct. 2309, **;

129 L. Ed. 2d 304, ***; 1994 U.S. LEXIS 4826

has never said why a public greenway, as opposed toprivate one, is required in the interest of flood control,even though (a) a public greenway would cause theowner to lose the right to exclude others, (b) it is difficultto see why allowing recreational visitors in the greenwayis sufficiently related to the legitimate interest in reducingflooding problems, (c) while the city contends that arecreational purpose is only ancillary, the owner wouldlose all rights to regulate the time in which the publicentered the greenway, regardless of any interference thatmight be posed with the store, and (d) the proposeddevelopment does not encroach on existing greenwayspace; and (2) the city has not met its burden ondemonstrating that the additional number of vehicle andbicycle trips generated by the development reasonablyrelate to the pathway condition, as (a) the city must makesome effort to quantify its findings beyond a conclusorystatement that the dedication could offset some of thetraffic demand generated, and (b) the takings clauserequires the city to implement its policy of providing acontinuous pathway system by condemnation unless therequired relationship between development and addedtraffic is shown. (Stevens, Blackmun, Ginsburg, andSouter, JJ., dissented from this holding.)

[***LEdHN2]

EMINENT DOMAIN §98

EVIDENCE §398

taking -- permit conditions -- burden of proof --

Headnote:[2A][2B][2C][2D][2E]

In order to decide whether conditions requiring thededication of land to a city, which conditions are imposedby the city on its approval of a lot owner's buildingpermit, constitute an uncompensated taking in violationof the takings clause of the Federal Constitution's FifthAmendment, a court must first determine whether anessential nexus exists between legitimate state interestsand the permit conditions; if the court finds that a nexusexists, then the court must determine whether the city hasshown a rough proportionality between the exactions andthe projected impact of the proposed development, that is,while no precise mathematical calculation is required, thecity must make some sort of individualized determinationthat the permit conditions are related both in nature andextent to the impact of the proposed development; in suchcircumstances, the burden properly rests on the city to

justify the required dedication, because the city has madean adjudicative decision to condition the owner'sapplication for a building permit on an individual parcel.(Stevens, Blackmun, Ginsburg, and Souter, JJ., dissentedfrom this holding.)

[***LEdHN3]

APPEAL §470

from state court -- federal question -- eminentdomain --

Headnote:[3A][3B]

On certiorari to review a decision of a state's highestcourt--which, in upholding a denial of an owner's requestfor a variance, ruled that two conditions imposed by acity on its approval of a building permit did not constitutean uncompensated taking in violation of the takingsclause of the Federal Constitution's FifthAmendment--the United States Supreme Court will takethe case as it comes to the court and will not pass on theconstitutionality of the city's variance provisions, whichallowed the owner to pose alternative mitigationmeasures to offset the expected impacts of her proposeddevelopment, where the state's highest court did notaddress the consequences of the owner's failure toprovide alternative mitigation measures in her varianceapplication.

[***LEdHN4]

CONSTITUTIONAL LAW §38.5

takings clause -- states --

Headnote:[4]

The clause in the Federal Constitution's FifthAmendment prohibiting the taking of private property forpublic use without just compensation is applicable to thestates through the Constitution's Fourteenth Amendment.

[***LEdHN5]

EMINENT DOMAIN §5

constitutional purpose --

Headnote:[5]

One of the principal purposes of the takings clause of

Page 5512 U.S. 374, *; 114 S. Ct. 2309, **;

129 L. Ed. 2d 304, ***LEdHN1; 1994 U.S. LEXIS 4826

the Federal Constitution's Fifth Amendment, inprohibiting the taking of private property for public usewithout just compensation, is to bar a government fromforcing some people alone to bear public burdens which,in all fairness and justice, should be borne by the publicas a whole.

[***LEdHN6]

EMINENT DOMAIN §78

taking -- land along creek --

Headnote:[6]

With respect to a creek which flows through onecorner and along one boundary of a city lot, if the citysimply requires the lot owner to dedicate a strip of landalong the creek for public use, then a taking occurs underthe takings clause of Federal Constitution's FifthAmendment, because such public access deprives theowner of the right to exclude others.

[***LEdHN7]

PROPERTY AND PROPERTY RIGHTS §3

exclusion --

Headnote:[7A][7B]

The right to exclude others is one of the mostessential sticks in the bundle of rights that are commonlycharacterized as property.

[***LEdHN8]

EMINENT DOMAIN §98

taking -- land use regulation --

Headnote:[8A][8B]

A land use regulation does not effect a taking, forpurposes of the takings clause of the FederalConstitution's Fifth Amendment, if the regulationsubstantially advances legitimate state interests and doesnot deny an owner economically viable use of the owner'sland; with respect to two conditions imposed by a city onits approval of a lot owner's building permit for a biggerretail store and some other construction, there can be noargument that the two conditions would deprive theowner of economically beneficial use of her property,

where she currently operates a retail store on the lot and,thus, is able to derive some economic use from herproperty.

[***LEdHN9]

EMINENT DOMAIN §98

taking -- governmental conditions --

Headnote:[9]

Under the well-settled doctrine of unconstitutionalconditions, a government may not require a person togive up a constitutional right--such as the right, under thetakings clause of the Federal Constitution's FifthAmendment, to receive just compensation when propertyis taken for a public use--in exchange for a discretionarybenefit conferred by the government, where the propertysought has little or no relationship to the benefit.(Stevens, Blackmun, and Ginsburg, JJ., dissented in partfrom this holding.)

[***LEdHN10]

EMINENT DOMAIN §98

taking -- building permit conditions -- dedication ofland --

Headnote:[10A][10B]

An essential nexus exists between legitimate stateinterests and two conditions imposed by a city on itsapproval of a lot owner's building permit for a biggerretail store, a paved and expanded parking area, and anadditional structure for complementary businesses--whichconditions require the owner to dedicate to the city (1) asa greenway the portion of her lot within the 100-yearfloodplain of a creek which flows through one corner andalong one boundary of the lot, and (2) as apedestrian/bicycle pathway an additional 15-foot strip ofland adjacent to the floodplain--for purposes ofdetermining whether the two conditions constitute anuncompensated taking in violation of the takings clauseof the Federal Constitution's Fifth Amendment, because(1) the prevention of flooding along the creek and thereduction of traffic congestion in the area both qualify aslegitimate public purposes; and (2) the required nexusexists, for (a) as to flooding, the proposed developmentwould expand the impervious surface on the lot andincrease the amount of stormwater runoff into the creek,

Page 6512 U.S. 374, *; 114 S. Ct. 2309, **;

129 L. Ed. 2d 304, ***LEdHN5; 1994 U.S. LEXIS 4826

and (b) in theory, a pedestrian/bicycle pathway wouldprovide a useful alternative means of transportation forworkers and shoppers.

[***LEdHN11]

EVIDENCE §98

burden of proof -- regulations --

Headnote:[11A][11B]

In evaluating most generally applicable zoningregulations of a municipality, the burden properly restson the party challenging a regulation to prove that itconstitutes an arbitrary regulation of property rights.

[***LEdHN12]

CONSTITUTIONAL LAW §101

EMINENT DOMAIN §98

business regulation --

Headnote:[12]

Simply denominating a governmental measure as abusiness regulation does not immunize the measure fromconstitutional challenge on the grounds that the measureviolates a provision of the Federal Constitution's Bill ofRights; this lack of immunity applies to a claim that twoconditions imposed by a city on its approval of a buildingpermit constitute an uncompensated taking in violation ofthe takings clause of the Constitution's Fifth Amendment,which is as much a part of the Bill of Rights as theConstitution's First Amendment or Fourth Amendment.

[***LEdHN13]

EMINENT DOMAIN §98

taking -- permit conditions --

Headnote:[13]

For purposes of determining whether conditionsimposed by a city on its approval of a building permitsatisfy the rough proportionality requirement of thetakings clause of the Federal Constitution's FifthAmendment, dedications for streets, sidewalks, and otherpublic ways are generally reasonable exactions to avoidexcessive congestion from a proposed property use.

[***LEdHN14]

EMINENT DOMAIN §110

payment -- necessity --

Headnote:[14]

Under the takings clause of the FederalConstitution's Fifth Amendment, a strong public desire toimprove the public condition will not warrant achievingthe desire by a shorter cut than the constitutional way ofpaying for the change.

SYLLABUS

The City Planning Commission of respondent cityconditioned approval of petitioner Dolan's application toexpand her store and pave her parking lot upon hercompliance with dedication of land (1) for a publicgreenway along Fanno Creek to minimize flooding thatwould be exacerbated by the increases in impervioussurfaces associated with her development and (2) for apedestrian/bicycle pathway intended to relieve trafficcongestion in the city's Central Business District. Sheappealed the commission's denial of her request forvariances from these standards to the Land Use Board ofAppeals (LUBA), alleging that the land dedicationrequirements were not related to the proposeddevelopment and therefore constituted an uncompensatedtaking of her property under the Fifth Amendment. LUBAfound a reasonable relationship between (1) thedevelopment and the requirement to dedicate land for agreenway, since the larger building and paved lot wouldincrease the impervious surfaces and thus the runoff intothe creek, and (2) alleviating the impact of increasedtraffic from the development and facilitating theprovision of a pathway as an alternative means oftransportation. Both the Oregon Court of Appeals and theOregon Supreme Court affirmed.

Held: The city's dedication requirements constitutean uncompensated taking of property. Pp. 383-396.

(a) Under the well-settled doctrine of"unconstitutional conditions," the government may notrequire a person to give up a constitutional right inexchange for a discretionary benefit conferred by thegovernment where the property sought has little or norelationship to the benefit. In evaluating Dolan's claim, itmust be determined whether an "essential nexus" exists

Page 7512 U.S. 374, *; 114 S. Ct. 2309, **;

129 L. Ed. 2d 304, ***LEdHN10; 1994 U.S. LEXIS 4826

between a legitimate state interest and the permitcondition. Nollan v. California Coastal Comm'n, 483U.S. 825, 837, 97 L. Ed. 2d 677, 107 S. Ct. 3141. If onedoes, then it must be decided whether the degree of theexactions demanded by the permit conditions bears therequired relationship to the projected impact of theproposed development. 483 U.S. at 834. Pp. 383-386.

(b) Preventing flooding along Fanno Creek andreducing traffic congestion in the district are legitimatepublic purposes; and a nexus exists between the firstpurpose and limiting development within the creek'sfloodplain and between the second purpose and providingfor alternative means of transportation. Pp. 386-388.

(c) In deciding the second question -- whether thecity's findings are constitutionally sufficient to justify theconditions imposed on Dolan's permit -- the necessaryconnection required by the Fifth Amendment is "roughproportionality." No precise mathematical calculation isrequired, but the city must make some sort ofindividualized determination that the required dedicationis related both in nature and extent to the proposeddevelopment's impact. This is essentially the "reasonablerelationship" test adopted by the majority of the statecourts. Pp. 388-391.

(d) The findings upon which the city relies do notshow the required reasonable relationship between thefloodplain easement and Dolan's proposed building. TheCommunity Development Code already required thatDolan leave 15% of her property as open space, and theundeveloped floodplain would have nearly satisfied thatrequirement. However, the city has never said why apublic, as opposed to a private, greenway is required inthe interest of flood control. The difference to Dolan isthe loss of her ability to exclude others from her property,yet the city has not attempted to make any individualizeddetermination to support this part of its request. The cityhas also not met its burden of demonstrating that theadditional number of vehicle and bicycle trips generatedby Dolan's development reasonably relates to the city'srequirement for a dedication of the pathway easement.The city must quantify its finding beyond a conclusorystatement that the dedication could offset some of thetraffic demand generated by the development. Pp.392-396.

COUNSEL: David B. Smith argued the cause and filedbriefs for petitioner.

Timothy V. Ramis argued the cause for respondent. Withhim on the brief were James M. Coleman and Richard J.Lazarus.

Deputy Solicitor General Kneedler argued the cause forthe 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 werefiled for the American Farm Bureau Federation etal. by James D. Holzhauer, Timothy S. Bishop,John J. Rademacher, and Richard L. Krause; forDefenders of Property Rights et al. by Nancie G.Marzulla; for the Georgia Public PolicyFoundation et al. by G. Stephen Parker; for theInstitute for Justice by William H. Mellor III,Clint Bolick, and Richard A. Epstein; for theNational Association of Home Builders et al. byWilliam H. Ethier, Mary DiCrescenzo, andStephanie McEvily; for the National Associationof Realtors et al. by Richard M. Stephens; for thePacific Legal Foundation by Ronald A. Zumbrun,Robin L. Rivett, James S. Burling, Deborah J. LaFetra, and John M. Groen; for the WashingtonLegal Foundation et al. by Daniel J. Popeo andPaul D. Kamenar; for Jon A. Chandler, pro se;and for Terence Wellner et al. by Daniel G.Marsh.

Briefs of amici curiae urging affirmance werefiled for the State of New Jersey et al. by DeborahT. Poritz, Attorney General of New Jersey, JackM. Sabatino and Mary Carol Jacobson, AssistantAttorneys General, and Rachel J. Horowitz,Deputy Attorney General, and by the AttorneysGeneral for their respective jurisdictions asfollows: Grant Woods of Arizona, RichardBlumenthal of Connecticut, Robert A.Butterworth of Florida, ElizabethBarrett-Anderson of Guam, Robert A. Marks ofHawaii, Michael E. Carpenter of Maine, ScottHarshbarger of Massachusetts, Frank J. Kelley ofMichigan, Joseph P. Mazurek of Montana,Frankie Sue Del Papa of Nevada, Tom Udall ofNew Mexico, G. Oliver Koppell of New York,Lee Fisher of Ohio, Jeffrey B. Pine of RhodeIsland, Charles W. Burson of Tennessee, RosalieS. Ballentine of the Virgin Islands, and Joseph B.

Page 8512 U.S. 374, *; 114 S. Ct. 2309, **;

129 L. Ed. 2d 304, ***LEdHN14; 1994 U.S. LEXIS 4826

Meyer of Wyoming; for the State of Oregon byTheodore R. Kulongoski, Attorney General,Thomas A. Balmer, Deputy Attorney General,Virginia L. Linder, Solicitor General, and MichaelD. Reynolds and John T. Bagg, AssistantAttorneys General; for Broward County by JohnJ. Copelan, Jr., and Anthony C. Musto; for theCity of New York by Paul A. Crotty, Leonard J.Koerner, and Linda H. Young; for the AmericanFederation of Labor and Congress of IndustrialOrganizations by Robert M. Weinberg, WalterKamiat, and Laurence Gold; for the Associationof State Floodplan Managers by Michael J. Bean;for the Rails-to-Trails Conservancy et al. byAndrea C. Ferster, Daniel L. Rabinowitz, andGlenn P. Sugameli; for the National Associationof Counties et al. by Richard Ruda, Lee Fennell,and Barbara E. Etkind; for the National AudubonSociety by John D. Echeverria; and for 1000Friends of Oregon et al. by H. Bissell Carey III,Dwight H. Merriam, and Edward J. Sullivan.

Briefs of amici curiae were filed for theMountain States Legal Foundation et al. byWilliam Perry Pendley; for the Northwest LegalFoundation by Jeanette R. Burrage; and forThomas H. Nelson, pro se, et al.

JUDGES: REHNQUIST, C. J., delivered the opinion ofthe Court, in which O'CONNOR, SCALIA, KENNEDY,and THOMAS, JJ., joined. STEVENS, J., filed adissenting opinion, in which BLACKMUN andGINSBURG, JJ., joined, post, p. 396. SOUTER, J., fileda dissenting opinion, post, p. 411.

OPINION BY: REHNQUIST

OPINION

[*377] [***311] [**2312] CHIEF JUSTICEREHNQUIST delivered the opinion of the Court.

[***LEdHR1A] [1A] [***LEdHR2A][2A]Petitioner challenges the decision of the OregonSupreme Court which held that the city of Tigard couldcondition the approval of her building permit on thededication of a portion of her property for flood controland 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 CoastalComm'n, 483 U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141(1987), of what is the required degree of connectionbetween the exactions imposed by the city and theprojected impacts of the proposed development.

[**2313] I

The State of Oregon enacted a comprehensive landuse management program in 1973. Ore. Rev. Stat. §§197.005-197.860 (1991). The program required allOregon cities and counties to adopt new comprehensiveland use plans that were consistent [***312] with thestatewide planning goals. §§ 197.175(1), 197.250. Theplans are implemented by land use regulations which arepart 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, acommunity of some 30,000 residents on the southwestedge of Portland, developed a comprehensive plan andcodified it in its Community Development Code (CDC).The CDC requires property owners in the area zonedCentral Business District to comply with a 15% openspace and landscaping requirement, which limits total sitecoverage, including all structures and paved parking, to85% of the parcel. CDC, ch. 18.66, App. to Pet. for Cert.G-16 to G-17. After the completion of a transportationstudy that identified [*378] congestion in the CentralBusiness District as a particular problem, the city adopteda plan for a pedestrian/bicycle pathway intended toencourage alternatives to automobile transportation forshort trips. The CDC requires that new developmentfacilitate this plan by dedicating land for pedestrianpathways where provided for in the pedestrian/bicyclepathway plan. 1

1 [HN1] CDC § 18.86.040.A.1.b provides: "Thedevelopment shall facilitate pedestrian/bicyclecirculation if the site is located on a street withdesignated bikepaths or adjacent to a designatedgreenway/open space/park. Specific items to beaddressed [include]: (i) Provision of efficient,convenient and continuous pedestrian and bicycletransit circulation systems, linking developmentsby requiring dedication and construction ofpedestrian and bikepaths identified in thecomprehensive plan. If direct connections cannotbe made, require that funds in the amount of theconstruction cost be deposited into an account forthe purpose of constructing paths." App. to Brief

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for Respondent B-33 to B-34.

The city also adopted a Master Drainage Plan(Drainage Plan). The Drainage Plan noted that floodingoccurred in several areas along Fanno Creek, includingareas 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 DrainagePlan also established that the increase in impervioussurfaces associated with continued urbanization wouldexacerbate these flooding problems. To combat theserisks, the Drainage Plan suggested a series ofimprovements to the Fanno Creek Basin, includingchannel excavation in the area next to petitioner'sproperty. App. to Pet. for Cert. G-13, G-38. Otherrecommendations included ensuring that the floodplainremains free of structures and that it be preserved asgreenways to minimize flood damage to structures.Record, Doc. No. F, ch. 5, pp. 5-16 to 5-21. The DrainagePlan concluded that the cost of these improvementsshould be shared based on both direct and indirectbenefits, with property owners along the water-wayspaying more due to the direct benefit that they wouldreceive. Id., ch. 8, p. 8-11. CDC Chapters 18.84 and18.86 [*379] and CDC § 18.164.100 and the TigardPark Plan carry out these recommendations.

Petitioner Florence Dolan owns a plumbing andelectric supply store located on Main Street in the CentralBusiness District of the city. The store coversapproximately 9,700 square feet on the eastern side of a1.67-acre parcel, which includes a gravel parking lot.Fanno Creek flows through the southwestern corner ofthe lot and along its western boundary. The year-roundflow of the creek renders the area within the creek's100-year floodplain virtually unusable for commercialdevelopment. [***313] The city's comprehensive planincludes the Fanno Creek floodplain as part of the city'sgreenway system.

Petitioner applied to the city for a permit toredevelop the site. Her proposed plans called for nearlydoubling the size of the store to 17,600 square feet andpaving a 39-space parking lot. The existing store, locatedon the opposite side of the parcel, would be razed insections as construction progressed on the new building.In the second phase of the project, petitioner proposed tobuild an additional structure on the northeast side of[**2314] the site for complementary businesses and toprovide more parking. The proposed expansion andintensified 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 toconditions imposed by the city's CDC. The CDCestablishes the following standard for site developmentreview approval:

"Where landfill and/or development isallowed within and adjacent to the100-year floodplain, the City shall requirethe dedication of sufficient open land areafor greenway adjoining and within thefloodplain. This area shall include portionsat a suitable elevation for the constructionof a pedestrian/bicycle pathway within the[*380] floodplain in accordance with theadopted pedestrian/bicycle plan." CDC §18.120.180.A.8, App. to Brief forRespondent B-45 to B-46.

Thus, the Commission required that petitioner dedicatethe portion of her property lying within the 100-yearfloodplain for improvement of a storm drainage systemalong Fanno Creek and that she dedicate an additional15-foot strip of land adjacent to the floodplain as apedestrian/bicycle pathway. 2 The dedication required bythat condition encompasses approximately 7,000 squarefeet, or roughly 10% of the property. In accordance withcity practice, petitioner could rely on the dedicatedproperty to meet the 15% open space and landscapingrequirement mandated by the city's zoning scheme. App.to Pet. for Cert. G-28 to G-29. The city would bear thecost of maintaining a landscaped buffer between thededicated area and the new store. Id., at G-44 to G-45.

2 The city's decision includes the followingrelevant conditions: "1. The applicant shalldedicate to the City as Greenway all portions ofthe site that fall within the existing 100-yearfloodplain [of Fanno Creek] (i. e., all portions ofthe property below elevation 150.0) and allproperty 15 feet above (to the east of) the 150.0foot floodplain boundary. The building shall bedesigned so as not to intrude into the greenwayarea." App. to Pet. for Cert. G-43.

Petitioner requested variances from the CDCstandards. [HN2] Variances are granted only where it can

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be shown that, owing to special circumstances related to aspecific piece of the land, the literal interpretation of theapplicable zoning provisions would cause "an undue orunnecessary hardship" unless the variance is granted.CDC § 18.134.010, App. to Brief for Respondent B-47. 3

Rather than posing alternative [*381] mitigating[***314] measures to offset the expected impacts of herproposed development, as allowed under the CDC,petitioner simply argued that her proposed developmentwould not conflict with the policies of the comprehensiveplan. Id., at E-4. The Commission denied the request.

3 [HN3] CDC § 18.134.050 contains thefollowing criteria whereby the decision-makingauthority can approve, approve withmodifications, or deny a variance request:

"(1) The proposed variance will not bematerially detrimental to the purposes of this title,be in conflict with the policies of thecomprehensive plan, to any other applicablepolicies and standards, and to other properties inthe same zoning district or vicinity;

"(2) There are special circumstances thatexist which are peculiar to the lot size or shape,topography or other circumstances over which theapplicant has no control, and which are notapplicable to other properties in the same zoningdistrict;

"(3) The use proposed will be the same aspermitted under this title and City standards willbe 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 beadversely affected any more than would occur ifthe development were located as specified in thetitle; and

"(5) The hardship is not self-imposed and thevariance requested is the minimum variancewhich would alleviate the hardship." App. to Brieffor Respondent B-49 to B-50.

The Commission made a series of findingsconcerning the relationship between the dedicatedconditions and the projected impacts of petitioner's

project. First, the Commission noted that "it is reasonableto assume that customers and employees of the futureuses of this site could utilize a pedestrian/bicycle pathwayadjacent to this development for their transportation andrecreational needs." [**2315] City of Tigard PlanningCommission Final Order No. 91-09 PC, App. to Pet. forCert. G-24. The Commission noted that the site plan hasprovided for bicycle parking in a rack in front of theproposed building and "it is reasonable to expect thatsome of the users of the bicycle parking provided for bythe site plan will use the pathway adjacent to FannoCreek if it is constructed." Ibid. In addition, theCommission found that creation of a convenient, safepedestrian/bicycle pathway system as an alternativemeans of transportation "could [*382] offset some of thetraffic demand on [nearby] streets and lessen the increasein traffic congestion." Ibid.

The Commission went on to note that the requiredfloodplain dedication would be reasonably related topetitioner's request to intensify the use of the site giventhe increase in the impervious surface. The Commissionstated that the "anticipated increased storm water flowfrom the subject property to an already strained creek anddrainage basin can only add to the public need to managethe stream channel and floodplain for drainage purposes."Id., at G-37. Based on this anticipated increased stormwater flow, the Commission concluded that "therequirement of dedication of the floodplain area on thesite is related to the applicant's plan to intensifydevelopment on the site." Ibid. The Tigard City Councilapproved the Commission's final order, subject to oneminor modification; the city council reassigned theresponsibility for surveying and marking the floodplainarea from petitioner to the city's engineering department.Id., at G-7.

Petitioner appealed to the Land Use Board ofAppeals (LUBA) on the ground that the city's dedicationrequirements were not related to the proposeddevelopment, and, therefore, those requirementsconstituted an uncompensated taking of her propertyunder the Fifth Amendment. In evaluating the federaltaking claim, LUBA assumed that the [***315] city'sfindings about the impacts of the proposed developmentwere supported by substantial evidence. Dolan v. Tigard,LUBA 91-161 (Jan. 7, 1992), reprinted at App. to Pet. forCert. D-15, n. 9. Given the undisputed fact that theproposed larger building and paved parking area wouldincrease the amount of impervious surfaces and the

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runoff into Fanno Creek, LUBA concluded that "there isa 'reasonable relationship' between the proposeddevelopment and the requirement to dedicate land alongFanno Creek for a greenway." Id., at D-16. With respectto the pedestrian/bicycle pathway, LUBA noted theCommission's finding that a significantly [*383] largerretail sales building and parking lot would attract largernumbers of customers and employees and their vehicles.It again found a "reasonable relationship" betweenalleviating the impacts of increased traffic from thedevelopment and facilitating the provision of apedestrian/bicycle pathway as an alternative means oftransportation. Ibid.

[***LEdHR3A] [3A]The Oregon Court of Appealsaffirmed, rejecting petitioner's contention that in Nollanv. California Coastal Comm'n, 483 U.S. 825, 97 L. Ed. 2d677, 107 S. Ct. 3141 (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 withpetitioner's contention that the Nollan Court abandonedthe "reasonably related" test. 317 Ore. at 118, 854 P.2dat 442. Instead, the court read Nollan to mean that an"exaction is reasonably related to an impact if theexaction serves the same purpose that a denial of thepermit would serve." 317 Ore. at 120, 854 P.2d at 443.The court decided that both the pedestrian/bicyclepathway condition and the storm drainage dedication hadan essential nexus to the development of the proposedsite. Id., at 121, 854 P.2d at 443. Therefore, the courtfound the conditions to be reasonably related to theimpact of the expansion of petitioner's business. Ibid. 4

[**2316] We granted certiorari, 510 U.S. 989 (1993),because of an alleged conflict between the OregonSupreme Court's decision and our decision in Nollan,supra.

4 [***LEdHR3B] [3B]

The Supreme Court of Oregon did notaddress the consequences of petitioner's failure toprovide alternative mitigation measures in hervariance application and we take the case as itcomes to us. Accordingly, we do not pass on theconstitutionality of the city's variance provisions.

II

[***LEdHR4] [4] [***LEdHR5] [5] [***LEdHR6]

[6] [***LEdHR7A] [7A][HN4] The Takings Clause ofthe Fifth Amendment of the United States Constitution,made applicable to the States through the FourteenthAmendment, Chicago, B. & Q. R. Co. v. Chicago, [*384]166 U.S. 226, 239, 17 S. Ct. 581, 41 L. Ed. 979 (1897),provides: "Nor shall private property be taken for publicuse, without just compensation." 5 One of the principal[***316] purposes of the Takings Clause is "to barGovernment from forcing some people alone to bearpublic burdens which, in all fairness and justice, shouldbe borne by the public as a whole." Armstrong v. UnitedStates, 364 U.S. 40, 49, 4 L. Ed. 2d 1554, 80 S. Ct. 1563(1960). Without question, had the city simply requiredpetitioner to dedicate a strip of land along Fanno Creekfor public use, rather than conditioning the grant of herpermit to redevelop her property on such a dedication, ataking would have occurred. Nollan, supra, at 831. Suchpublic access would deprive petitioner of [HN5] the rightto exclude others, "one of the most essential sticks in thebundle of rights that are commonly characterized asproperty." Kaiser Aetna v. United States, 444 U.S. 164,176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979).

5 JUSTICE STEVENS' dissent suggests that thiscase is actually grounded in "substantive" dueprocess, rather than in the view that the TakingsClause of the Fifth Amendment was madeapplicable to the States by the FourteenthAmendment. But there is no doubt that later caseshave held that the Fourteenth Amendment doesmake the Takings Clause of the Fifth Amendmentapplicable to the States, see Penn Central Transp.Co. v. New York City, 438 U.S. 104, 122, 57 L.Ed. 2d 631, 98 S. Ct. 2646 (1978); Nollan v.California Coastal Comm'n, 483 U.S. 825, 827,97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987). Nor isthere any doubt that these cases have relied uponChicago, B. & Q. R. Co. v. Chicago, 166 U.S.226, 41 L. Ed. 979, 17 S. Ct. 581 (1897), to reachthat result. See, e. g., Penn Central, supra, at 122("The issue presented . . . [is] whether therestrictions imposed by New York City's lawupon appellants' exploitation of the Terminal siteeffect a 'taking' of appellants' property for a publicuse within the meaning of the Fifth Amendment,which of course is made applicable to the Statesthrough the Fourteenth Amendment, see Chicago,B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239, 41L. Ed. 979, 17 S. Ct. 581 (1897)").

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[***LEdHR8A] [8A]On the other side of theledger, [HN6] the authority of state and localgovernments to engage in land use planning has beensustained against constitutional challenge as long ago asour decision in Village of Euclid v. Ambler Realty Co.,272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926)."Government hardly could go on if to some extent valuesincident to property could not be diminished [*385]without paying for every such change in the general law."[HN7] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,413, 67 L. Ed. 322, 43 S. Ct. 158 (1922). A land useregulation does not effect a taking if it "substantiallyadvances legitimate state interests" and does not "deny anowner economically viable use of his land." Agins v. Cityof Tiburon, 447 U.S. 255, 260, 65 L. Ed. 2d 106, 100 S.Ct. 2138 (1980). 6

6 [***LEdHR8B] [8B]

There can be no argument that the permitconditions would deprive petitioner of"economically beneficial use" of her property asshe currently operates a retail store on the lot.Petitioner assuredly is able to derive someeconomic use from her property. See, e. g., Lucasv. South Carolina Coastal Council, 505 U.S.1003, 1019, 120 L. Ed. 2d 798, 112 S. Ct. 2886(1992); Kaiser Aetna v. United States, 444 U.S.164, 175, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979);Penn Central Transp. Co. v. New York City,supra, at 124.

[***LEdHR9] [9]The sort of land use regulationsdiscussed in the cases just cited, however, differ in tworelevant particulars from the present case. First, theyinvolved essentially legislative determinations classifyingentire areas of the city, whereas here the city made anadjudicative decision to condition petitioner's applicationfor a building permit on an individual parcel. Second, theconditions imposed were not simply a limitation on theuse petitioner might make of her own parcel, but arequirement that she deed portions of the property to thecity. In Nollan, supra, we [**2317] held thatgovernmental authority to exact such a condition wascircumscribed by the Fifth and Fourteenth Amendments.[HN8] Under the well-settled doctrine of"unconstitutional conditions," the government may notrequire a person to give up a constitutional right -- herethe right to receive just compensation when property istaken for a public use -- in exchange for a discretionary

benefit conferred by the government where the benefitsought has little or no relationship to the property. SeePerry [***317] v. Sindermann, 408 U.S. 593, 33 L. Ed.2d 570, 92 S. Ct. 2694 (1972); Pickering v. Board of Ed.of Township High School Dist. 205, Will Cty., 391 U.S.563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).

Petitioner contends that the city has forced her tochoose between the building permit and her right underthe Fifth [*386] Amendment to just compensation for thepublic easements. Petitioner does not quarrel with thecity's authority to exact some forms of dedication as acondition for the grant of a building permit, butchallenges the showing made by the city to justify theseexactions. She argues that the city has identified "nospecial benefits" conferred on her, and has not identifiedany "special quantifiable burdens" created by her newstore that would justify the particular dedications requiredfrom her which are not required from the public at large.

III

[***LEdHR1B] [1B] [***LEdHR2B] [2B][***LEdHR10A] [10A][HN9] In evaluating petitioner'sclaim, we must first determine whether the "essentialnexus" exists between the "legitimate state interest" andthe permit condition exacted by the city. Nollan, 483U.S. at 837. If we find that a nexus exists, we must thendecide the required degree of connection between theexactions and the projected impact of the proposeddevelopment. We were not required to reach this questionin Nollan, because we concluded that the connection didnot meet even the loosest standard. 483 U.S. at 838.Here, however, we must decide this question.

A

[***LEdHR10B] [10B]We addressed the essentialnexus question in Nollan. The California CoastalCommission demanded a lateral public easement acrossthe Nollans' beachfront lot in exchange for a permit todemolish an existing bungalow and replace it with athree-bedroom house. 483 U.S. at 828. The publiceasement was designed to connect two public beachesthat were separated by the Nollans' property. The CoastalCommission had asserted that the public easementcondition was imposed to promote the legitimate stateinterest of diminishing the "blockage of the view of theocean" caused by construction of the larger house.

We agreed that the Coastal Commission's concern

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with protecting visual access to the ocean constituted alegitimate [*387] public interest. 483 U.S. at 835. Wealso agreed that the permit condition would have beenconstitutional "even if it consisted of the requirement thatthe Nollans provide a viewing spot on their property forpassersby with whose sighting of the ocean their newhouse would interfere." 483 U.S. at 836. We resolved,however, that the Coastal Commission's regulatoryauthority was set completely adrift from its constitutionalmoorings when it claimed that a nexus existed betweenvisual access to the ocean and a permit conditionrequiring lateral public access along the Nollans'beachfront lot. 483 U.S. at 837. How enhancing thepublic's ability to "traverse to and along the shorefront"served the same governmental purpose of "visual accessto the ocean" from the roadway was beyond our ability tocountenance. The absence of a nexus left the CoastalCommission in the position of simply [***318] trying toobtain an easement through gimmickry, which converteda valid regulation of land use into "'an out-and-out plan ofextortion.'" 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 permitconditions imposed by the city in this case. Undoubtedly,[HN10] the prevention of flooding [**2318] alongFanno Creek and the reduction of traffic congestion in theCentral Business District qualify as the type of legitimatepublic purposes we have upheld. Agins, 447 U.S. at260-262. It seems equally obvious that a nexus existsbetween preventing flooding along Fanno Creek andlimiting development within the creek's 100-yearfloodplain. Petitioner proposes to double the size of herretail store and to pave her now-gravel parking lot,thereby expanding the impervious surface on the propertyand increasing the amount of storm water runoff intoFanno Creek.

The same may be said for the city's attempt to reducetraffic congestion by providing for alternative means oftransportation. In theory, a pedestrian/bicycle pathwayprovides a useful alternative means of transportation forworkers and shoppers: "Pedestrians and bicyclistsoccupying dedicated [*388] spaces for walking and/orbicycling . . . remove potential vehicles from streets,resulting in an overall improvement in total transportationsystem flow." A. Nelson, Public Provision of Pedestrianand Bicycle Access Ways: Public Policy Rationale andthe Nature of Private Benefits 11, Center for PlanningDevelopment, Georgia Institute of Technology, Working

Paper Series (Jan. 1994). See also Intermodal SurfaceTransportation Efficiency Act of 1991, Pub. L. 102-240,105 Stat. 1914 (recognizing pedestrian and bicyclefacilities as necessary components of any strategy toreduce traffic congestion).

B

[***LEdHR2C] [2C]The second part of ouranalysis requires us to [HN11] determine whether thedegree of the exactions demanded by the city's permitconditions bears the required relationship to the projectedimpact of petitioner's proposed development. Nollan,supra, at 834, quoting Penn Central Transp. Co. v. NewYork City, 438 U.S. 104, 127, 57 L. Ed. 2d 631, 98 S. Ct.2646 (1978) ("'[A] use restriction may constitute a"taking" if not reasonably necessary to the effectuation ofa substantial government purpose'"). Here the OregonSupreme Court deferred to what it termed the "city'sunchallenged factual findings" supporting the dedicationconditions and found them to be reasonably related to theimpact of the expansion of petitioner's business. 317Ore. at 120-121, 854 P.2d at 443.

The city required that petitioner dedicate "to the Cityas Greenway all portions of the site that fall within theexisting 100-year floodplain [of Fanno Creek] . . . and allproperty 15 feet above [the floodplain] boundary." Id., at113, n. 3, 854 P.2d at 439, n. 3. In addition, the citydemanded that the retail store be designed so as not tointrude into the greenway area. The city relies on theCommission's rather tentative findings that increasedstorm water flow from petitioner's property "can only addto the public need to manage the [floodplain] for drainagepurposes" to support its conclusion that the "requirementof dedication of the floodplain area on [*389] the site isrelated to the [***319] applicant's plan to intensifydevelopment on the site." City of Tigard PlanningCommission Final Order No. 91-09 PC, App. to Pet. forCert. G-37.

The city made the following specific findingsrelevant to the pedestrian/bicycle pathway:

"In addition, the proposed expanded useof this site is anticipated to generateadditional vehicular traffic therebyincreasing congestion on nearby collectorand arterial streets. Creation of aconvenient, safe pedestrian/bicyclepathway system as an alternative means of

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transportation could offset some of thetraffic demand on these nearby streets andlessen the increase in traffic congestion."Id., at G-24.

The question for us is whether these findings areconstitutionally sufficient to justify the conditionsimposed by the city on petitioner's building permit. Sincestate courts have been dealing with this question a gooddeal longer than we have, we turn to representativedecisions made by them.

[HN12] In some States, very generalized statementsas to the necessary connection between the requireddedication and the proposed development seem to suffice.See, e. g., Billings Properties, Inc. v. Yellowstone County,144 Mont. 25, 394 P.2d 182 (1964); [**2319] Jenad,Inc. v. Scarsdale, 18 N.Y.2d 78, 218 N.E.2d 673, 271N.Y.S.2d 955 (1966). We think this standard is too lax toadequately protect petitioner's right to just compensationif her property is taken for a public purpose.

Other state courts require a very exactingcorrespondence, described as the "specific and uniquelyattributable" test. The Supreme Court of Illinois firstdeveloped 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, [*390] if the localgovernment cannot demonstrate that its exaction isdirectly proportional to the specifically created need, theexaction becomes "a veiled exercise of the power ofeminent domain and a confiscation of private propertybehind the defense of police regulations." Id., at 381, 176N.E.2d at 802. We do not think the Federal Constitutionrequires such exacting scrutiny, given the nature of theinterests involved.

7 The "specifically and uniquely attributable"test has now been adopted by a minority of othercourts. 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. ofTwp. of Wayne, 66 N.J. 582, 600-601, 334 A.2d30, 40 (1975); McKain v. Toledo City PlanComm'n, 26 Ohio App. 2d 171, 176, 270 N.E.2d370, 374 (1971); Frank Ansuini, Inc. v. Cranston,107 R.I. 63, 69, 264 A.2d 910, 913 (1970).

A number of state courts have taken an intermediateposition, requiring the municipality to show a "reasonable

relationship" between the required dedication and theimpact of the proposed development. Typical is theSupreme 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 mustbe made between an appropriate exerciseof the police power and an improperexercise of eminent domain is whether therequirement has some reasonablerelationship or nexus to the use to whichthe property is being made [***320] or ismerely being used as an excuse for takingproperty simply because at that particularmoment the landowner is asking the cityfor some license or permit."

Thus, the court held that a city may not require a propertyowner to dedicate private property for some future publicuse as a condition of obtaining a building permit whensuch future use is not "occasioned by the constructionsought to be permitted." Id., at 248, 292 N.W.2d at 302.

Some form of the reasonable relationship test hasbeen adopted in many other jurisdictions. See, e. g.,Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d442 (1965); Collis v. Bloomington, 310 Minn. 5, 246N.W.2d 19 (1976) (requiring a showing of a reasonablerelationship between [*391] the planned subdivision andthe municipality's need for land); College Station v.Turtle Rock Corp., 680 S.W.2d 802, 807 (Tex. 1984); Callv. West Jordan, 606 P.2d 217, 220 (Utah 1979)(affirming use of the reasonable relation test). Despiteany semantical differences, general agreement existsamong the courts "that the dedication should have somereasonable relationship to the needs created by the[development]." Ibid. See generally Note, "'Take' MyBeach Please!": Nollan v. California Coastal Commissionand a Rational-Nexus Constitutional Analysis ofDevelopment Exactions, 69 B. U. L. Rev. 823 (1989); seealso Parks v. Watson, 716 F.2d 646, 651-653 (CA91983).

[***LEdHR1C] [1C] [***LEdHR2D] [2D][***LEdHR11A] [11A]We think the "reasonablerelationship" test adopted by a majority of the state courtsis closer to the federal constitutional norm than either ofthose previously discussed. But we do not adopt it assuch, partly because the term "reasonable relationship"

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seems confusingly similar to the term "rational basis"which describes the minimal level of scrutiny under theEqual Protection Clause of the Fourteenth Amendment.We think a term such as "rough proportionality" bestencapsulates what we hold to be the requirement of theFifth Amendment. [HN13] No precise mathematicalcalculation is required, but the city must make some sortof individualized determination that the requireddedication [**2320] is related both in nature and extentto the impact of the proposed development. 8

8 [***LEdHR2E] [2E] [***LEdHR11B] [11B]

JUSTICE STEVENS' dissent takes us to taskfor placing the burden on the city to justify therequired dedication. He is correct in arguing thatin evaluating most generally applicable zoningregulations, the burden properly rests on the partychallenging the regulation to prove that itconstitutes an arbitrary regulation of propertyrights. See, e. g., Village of Euclid v. AmblerRealty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct.114 (1926). Here, by contrast, the city made anadjudicative decision to condition petitioner'sapplication for a building permit on an individualparcel. In this situation, the burden properly restson the city. See Nollan, 483 U.S. at 836. Thisconclusion is not, as he suggests, undermined byour decision in Moore v. East Cleveland, 431 U.S.494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977), inwhich we struck down a housing ordinance thatlimited occupancy of a dwelling unit to membersof a single family as violating the Due ProcessClause of the Fourteenth Amendment. Theordinance at issue in Moore intruded on choicesconcerning family living arrangements, an area inwhich the usual deference to the legislature wasfound to be inappropriate. Id., at 499.

[***LEdHR1D] [1D] [***LEdHR12] [12] [*392]JUSTICE STEVENS' dissent relies upon a law reviewarticle for the proposition that the city's conditionaldemands for part of petitioner's property are "a species ofbusiness regulation that heretofore warranted a strongpresumption of constitutional validity." Post, at 402. Butsimply [***321] denominating a governmental measureas a "business regulation" does not immunize it fromconstitutional challenge on the ground that it violates aprovision of the Bill of Rights. In Marshall v. Barlow's,Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816

(1978), we held that a statute authorizing a warrantlesssearch of business premises in order to detect OSHAviolations violated the Fourth Amendment. See also AirPollution Variance Bd. of Colo. v. Western Alfalfa Corp.,416 U.S. 861, 40 L. Ed. 2d 607, 94 S. Ct. 2114 (1974);New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107S. Ct. 2636 (1987). And in Central Hudson Gas & Elec.Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 65L. Ed. 2d 341, 100 S. Ct. 2343 (1980), we held that anorder of the New York Public Service Commission,designed to cut down the use of electricity because of afuel shortage, violated the First Amendment insofar as itprohibited advertising by a utility company to promotethe use of electricity. We see no reason why the TakingsClause of the Fifth Amendment, as much a part of the Billof Rights as the First Amendment or Fourth Amendment,should be relegated to the status of a poor relation inthese comparable circumstances. We turn now to analysisof whether the findings relied upon by the city here, firstwith respect to the floodplain easement, and second withrespect to the pedestrian/bicycle path, satisfied theserequirements.

It is axiomatic that increasing the amount ofimpervious surface will increase the quantity and rate ofstorm water flow from petitioner's property. Record, Doc.No. F, ch. 4, [*393] p. 4-29. Therefore, keeping thefloodplain open and free from development would likelyconfine the pressures on Fanno Creek created bypetitioner's development. In fact, because petitioner'sproperty lies within the Central Business District, theCDC already required that petitioner leave 15% of it asopen space and the undeveloped floodplain would havenearly satisfied that requirement. App. to Pet. for Cert.G-16 to G-17. But the city demanded more -- it not onlywanted petitioner not to build in the floodplain, but it alsowanted petitioner's property along Fanno Creek for itsgreenway system. The city has never said why a publicgreenway, as opposed to a private one, was required inthe interest of flood control.

[***LEdHR1E] [1E] [***LEdHR7B] [7B]Thedifference to petitioner, of course, is the loss of her abilityto exclude others. As we have noted, this right to excludeothers is "one of the most essential sticks in the bundle ofrights that are commonly characterized as property."Kaiser Aetna, 444 U.S. at 176. It is difficult to see whyrecreational visitors trampling along petitioner'sfloodplain easement are sufficiently related to the city'slegitimate interest in reducing flooding problems along

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Fanno Creek, and the city has not attempted to [**2321]make any individualized determination to support thispart of its request.

[***LEdHR1F] [1F]The city contends that therecreational easement along the greenway is onlyancillary to the city's chief purpose in controlling floodhazards. It further asserts that unlike the residentialproperty at issue in Nollan, petitioner's property iscommercial in character and, therefore, her right toexclude others is compromised. Brief for Respondent[***322] 41, quoting United States v. Orito, 413 U.S.139, 142, 37 L. Ed. 2d 513, 93 S. Ct. 2674 (1973) ("'TheConstitution extends special safeguards to the privacy ofthe home'"). The city maintains that "there is nothing tosuggest that preventing [petitioner] from prohibiting [theeasements] will unreasonably impair the value of [her]property as a [retail store]." PruneYard Shopping Centerv. Robins, 447 U.S. 74, 83, 64 L. Ed. 2d 741, 100 S. Ct.2035 (1980).

[*394] Admittedly, petitioner wants to build abigger store to attract members of the public to herproperty. She also wants, however, to be able to controlthe time and manner in which they enter. The recreationaleasement on the greenway is different in character fromthe exercise of state-protected rights of free expressionand petition that we permitted in PruneYard. InPruneYard, we held that a major private shopping centerthat attracted more than 25,000 daily patrons had toprovide access to persons exercising their stateconstitutional rights to distribute pamphlets and askpassers-by to sign their petitions. Id., at 85. We basedour decision, in part, on the fact that the shopping center"may restrict expressive activity by adopting time, place,and manner regulations that will minimize anyinterference with its commercial functions." Id., at 83. Bycontrast, the city wants to impose a permanentrecreational easement upon petitioner's property thatborders Fanno Creek. Petitioner would lose all rights toregulate the time in which the public entered onto thegreenway, regardless of any interference it might posewith her retail store. Her right to exclude would not beregulated, it would be eviscerated.

If petitioner's proposed development had somehowencroached on existing greenway space in the city, itwould have been reasonable to require petitioner toprovide some alternative greenway space for the publiceither on her property or elsewhere. See Nollan, 483 U.S.

at 836 ("Although such a requirement, constituting apermanent grant of continuous access to the property,would have to be considered a taking if it were notattached to a development permit, the Commission'sassumed power to forbid construction of the house inorder to protect the public's view of the beach must surelyinclude the power to condition construction upon someconcession by the owner, even a concession of propertyrights, that serves the same end"). But that is not the casehere. We conclude that the findings upon which the cityrelies [*395] do not show the required reasonablerelationship between the floodplain easement and thepetitioner's proposed new building.

[***LEdHR1G] [1G] [***LEdHR13] [13]Withrespect to the pedestrian/bicycle pathway, we have nodoubt that the city was correct in finding that the largerretail sales facility proposed by petitioner will increasetraffic on the streets of the Central Business District. Thecity estimates that the proposed development wouldgenerate roughly 435 additional trips per day. 9

Dedications for streets, sidewalks, and other public waysare generally reasonable exactions to avoid excessivecongestion [***323] from a proposed property use. Buton the record before us, the city has not met its burden ofdemonstrating that the additional number of vehicle andbicycle trips generated by petitioner's developmentreasonably relate to the city's requirement for adedication of the pedestrian/bicycle pathway easement.The city simply found that the creation of the pathway"could offset some of the traffic [**2322] demand . . .and lessen the increase in traffic congestion." 10

9 The city uses a weekday average trip rate of53.21 trips per 1,000 square feet. Additional TripsGenerated = 53.21 X (17,600 -9,720). App. to Pet.for Cert. G-15.10 [***LEdHR1H] [1H]

In rejecting petitioner's request for a variancefrom the pathway dedication condition, the citystated that omitting the planned section of thepathway across petitioner's property wouldconflict with its adopted policy of providing acontinuous pathway system. But the TakingsClause requires the city to implement its policyby condemnation unless the required relationshipbetween petitioner's development and addedtraffic is shown.

As Justice Peterson of the Supreme Court of Oregon

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explained in his dissenting opinion, however, "thefindings of fact that the bicycle pathway system 'couldoffset some of the traffic demand' is a far cry from afinding that the bicycle pathway system will, or is likelyto, offset some of the traffic demand." 317 Ore. at 127,854 P.2d at 447 (emphasis in original). No precisemathematical calculation is required, but the city mustmake some effort to quantify its findings in [*396]support of the dedication for the pedestrian/bicyclepathway beyond the conclusory statement that it couldoffset some of the traffic demand generated.

IV

[***LEdHR1I] [1I] [***LEdHR14] [14]Citieshave long engaged in the commendable task of land useplanning, made necessary by increasing urbanization,particularly in metropolitan areas such as Portland. Thecity's goals of reducing flooding hazards and trafficcongestion, and providing for public greenways, arelaudable, but there are outer limits to how this may bedone. [HN14] "A strong public desire to improve thepublic condition [will not] warrant achieving the desireby a shorter cut than the constitutional way of paying forthe change." Pennsylvania Coal, 260 U.S. at 416.

The judgment of the Supreme Court of Oregon isreversed, and the case is remanded for furtherproceedings not inconsistent with this opinion.

It is so ordered.

DISSENT BY: STEVENS; SOUTER

DISSENT

JUSTICE STEVENS, with whom JUSTICEBLACKMUN and JUSTICE GINSBURG join,dissenting.

The record does not tell us the dollar value ofpetitioner Florence Dolan's interest in excluding thepublic from the greenway adjacent to her hardwarebusiness. The mountain of briefs that the case hasgenerated nevertheless makes it obvious that thepecuniary value of her victory is far less important thanthe rule of law that this case has been used to establish. Itis unquestionably an important case.

Certain propositions are not in dispute. Theenlargement of the Tigard unit in Dolan's chain of

hardware stores will have an adverse impact on the city'slegitimate and substantial interests in controlling drainagein Fanno Creek and minimizing traffic congestion inTigard's business district. That impact is [***324]sufficient to justify an outright denial of her applicationfor approval of the expansion. The city has nevertheless[*397] agreed to grant Dolan's application if she willcomply with two conditions, each of which admittedlywill mitigate the adverse effects of her proposeddevelopment. The disputed question is whether the cityhas violated the Fourteenth Amendment to the FederalConstitution by refusing to allow Dolan's plannedconstruction to proceed unless those conditions are met.

The Court is correct in concluding that the city maynot attach arbitrary conditions to a building permit or to avariance even when it can rightfully deny the applicationout-right. I also agree that state court decisions dealingwith ordinances that govern municipal development plansprovide useful guidance in a case of this kind. Yet theCourt's description of the doctrinal underpinnings of itsdecision, the phrasing of its fledgling test of "roughproportionality," and the application of that test to thiscase run contrary to the traditional treatment of thesecases and break considerable and unpropitious newground.

I

Candidly acknowledging the lack of federalprecedent for its exercise in rulemaking, the Courtpurports to find guidance in 12 "representative" [**2323]state court decisions. To do so is certainly appropriate. 1

The state cases the Court consults, however, either fail tosupport or decidedly undermine the Court's conclusionsin key respects.

1 Cf. Moore v. East Cleveland, 431 U.S. 494,513-521, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977)(STEVENS, J., concurring in judgment).

First, although discussion of the state casespermeates the Court's analysis of the appropriate test toapply in this case, the test on which the Court settles isnot naturally derived from those courts' decisions. TheCourt recognizes as an initial matter that the city'sconditions satisfy the "essential nexus" requirementannounced in Nollan v. California Coastal Comm'n, 483U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987),because they serve the legitimate interests in minimizingfloods and traffic congestions. [*398] Ante, at 387-388.

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2 The Court goes on, however, to erect a newconstitutional hurdle in the path of these conditions. Inaddition to showing a rational nexus to a public purposethat would justify an outright denial of the permit, thecity must also demonstrate "rough proportionality"between the harm caused by the new land use and thebenefit obtained by [***325] the condition. Ante, at 391.The Court also decides for the first time that the city hasthe burden of establishing the constitutionality of itsconditions by making an "individualized determination"that the condition in question satisfies the proportionalityrequirement. See ibid.

2 In Nollan the Court recognized that a stateagency may condition the grant of a land usepermit on the dedication of a property interest ifthe dedication serves a legitimate police-powerpurpose that would justify a refusal to issue thepermit. For the first time, however, it held thatsuch a condition is unconstitutional if thecondition "utterly fails" to further a goal thatwould justify the refusal. 483 U.S. at 837. In theNollan Court's view, a condition would beconstitutional even if it required the Nollans toprovide a viewing spot for passers-by whose viewof the ocean was obstructed by their new house.Id., at 836. "Although such a requirement,constituting a permanent grant of continuousaccess to the property, would have to beconsidered a taking if it were not attached to adevelopment permit, the Commission's assumedpower to forbid construction of the house in orderto protect the public's view of the beach mustsurely include the power to condition constructionupon some concession by the owner, even aconcession of property rights, that serves the sameend." Ibid.

Not one of the state cases cited by the Courtannounces anything akin to a "rough proportionality"requirement. For the most part, moreover, those casesthat invalidated municipal ordinances did so on state lawor 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 "reasonablerelationship" or "rational nexus" to property's use violatedNebraska 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 purporting

[*399] to apply the strict "specifically and uniquelyattributable" test established by Pioneer Trust & SavingsBank v. Mount Prospect, 22 Ill. 2d 375, 176 N.E.2d 799(1961), nevertheless found that test was satisfied becausethe legislature had decided that the subdivision at issuecreated the need for a park or parks. Billings Properties,Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394P.2d 182, 187-188 (1964). In only one of the seven casesupholding a land use regulation did the losing propertyowner 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 ofsubstantial federal question). Although 4 of the 12opinions mention the Federal Constitution -- 2 of thoseonly in passing -- it is quite obvious that neither thecourts nor the litigants imagined they might beparticipating in the development of a new rule of federallaw. Thus, although these state cases do lend support tothe Court's reaffirmance of Nollan's reasonable nexusrequirement, the role the Court accords them in theannouncement of its newly minted second phase of theconstitutional inquiry is remarkably inventive.

[**2324] In addition, the Court ignores the statecourts' willingness to consider what the property ownergains from the exchange in question. The Supreme Courtof Wisconsin, for example, found it significant that thevillage's approval of a proposed subdivision plat "enablesthe subdivider to profit financially by selling thesubdivision lots as home-building sites and thus realizinga greater price than could have been obtained if he hadsold his property as unplatted lands." Jordan v.Menomonee Falls, 28 Wis. 2d at 619-620; 137 N.W.2dat 448. The required dedication as a condition of thatapproval was permissible "in return for this benefit." Ibid.See also Collis v. Bloomington, 310 Minn. 5, 11-13, 246N.W.2d 19, 23-24 (1976) (citing Jordan); College Stationv. Turtle Rock Corp., 680 S.W.2d 802, 806 (Tex. 1984)(dedication requirement only triggered when developerchooses [*400] to develop land). In this case, moreover,Dolan's acceptance of the permit, with its attachedconditions, would provide her with benefits that may wellgo beyond any advantage she gets from expanding herbusiness. As the United States pointed out at oralargument, the improvement [***326] that the city'sdrainage plan contemplates would widen the channel andreinforce the slopes to increase the carrying capacityduring serious floods, "conferring considerable benefitson the property owners immediately adjacent to thecreek." Tr. of Oral Arg. 41-42.

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The state court decisions also are enlightening in theextent to which they required that the entire parcel begiven controlling importance. All but one of the casesinvolve challenges to provisions in municipal ordinancesrequiring developers to dedicate either a percentage of theentire parcel (usually 7 or 10 percent of the plattedsubdivision) or an equivalent value in cash (usually acertain dollar amount per lot) to help finance theconstruction of roads, utilities, schools, parks, andplaygrounds. In assessing the legality of the conditions,the courts gave no indication that the transfer of aninterest in realty was any more objectionable than a cashpayment. See, e. g., Jenad, Inc. v. Scarsdale, 18 N.Y.2d78, 218 N.E.2d 673, 271 N.Y.S.2d 955 (1966); Jordan v.Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442(1965); Collis v. Bloomington, 310 Minn. 5, 246 N.W.2d19 (1976). None of the decisions identified the surrenderof the fee owner's "power to exclude" as having anyspecial significance. Instead, the courts uniformlyexamined the character of the entire economictransaction.

II

It is not merely state cases, but our own cases aswell, that require the analysis to focus on the impact ofthe city's action on the entire parcel of private property.In Penn Central Transp. Co. v. New York City, 438 U.S.104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978), we statedthat takings jurisprudence "does not divide a single parcel[*401] into discrete segments and attempt to determinewhether rights in a particular segment have been entirelyabrogated." 438 U.S. at 130-131. Instead, this Courtfocuses "both on the character of the action and on thenature and extent of the interference with rights in theparcel as a whole." Ibid. Andrus v. Allard, 444 U.S. 51,62 L. Ed. 2d 210, 100 S. Ct. 318 (1979), reaffirmed thenondivisibility principle outlined in Penn Central, statingthat "at least where an owner possesses a full 'bundle' ofproperty rights, the destruction of one 'strand' of thebundle is not a taking, because the aggregate must beviewed in its entirety." 444 U.S. at 65-66. 3 As recentlyas last Term, we approved the principle again. SeeConcrete Pipe & Products of Cal., Inc. v. ConstructionLaborers Pension Trust for Southern Cal., 508 U.S. 602,644, 124 L. Ed. 2d 539, 113 S. Ct. 2264 (1993)(explaining that "a claimant's parcel of property [cannot]first be divided into what was taken and what was left" todemonstrate a compensable taking). Although limitationof the right to exclude others undoubtedly constitutes a

significant [**2325] infringement upon propertyownership, Kaiser Aetna v. United States, 444 U.S. 164,179-180, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979),restrictions on that right do not alone constitute a taking,and do not do so in any event unless they "unreasonablyimpair the value or use" of the property. [***327]PruneYard Shopping Center v. Robins, 447 U.S. 74,82-84, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980).

3 Similarly, in Keystone Bituminous Coal Assn.v. DeBenedictis, 480 U.S. 470, 498-499, 94 L. Ed.2d 472, 107 S. Ct. 1232 (1987), we concluded that"the 27 million tons of coal do not constitute aseparate segment of property for takings lawpurposes" and that "there is no basis for treatingthe less than 2% of petitioners' coal as a separateparcel of property."

The Court's narrow focus on one strand in theproperty owner's bundle of rights is particularlymisguided in a case involving the development ofcommercial property. As Professor Johnston has noted:

"The subdivider is a manufacturer,processer, and marketer of a product; landis but one of his raw materials. Insubdivision control disputes, the developeris [*402] not defending hearth and homeagainst the king's intrusion, but simplyattempting to maximize his profits fromthe sale of a finished product. As appliedto him, subdivision control exactions areactually business regulations." Johnston,Constitutionality of Subdivision ControlExactions: The Quest for A Rationale, 52Cornell L. Q. 871, 923 (1967). 4

The exactions associated with the development of a retailbusiness are likewise a species of business regulation thatheretofore warranted a strong presumption ofconstitutional validity.

4 Johnston's article also sets forth a fairsummary of the state cases from which the Courtpurports to derive its "rough proportionality" test.See 52 Cornell L. Q., at 917. Like the Court,Johnston observed that cases requiring a "rationalnexus" between exactions and public needscreated by the new subdivision -- especially

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Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137N.W.2d 442 (1965) -- "steer a moderate course"between the "judicial obstructionism" of PioneerTrust & 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.2d182 (1964). 52 Cornell L. Q., at 917.

In Johnston's view, "if the municipality candemonstrate that its assessment of financial burdensagainst subdividers is rational, impartial, and conduciveto fulfillment of authorized planning objectives, its actionneed be invalidated only in those extreme andpresumably rare cases where the burden of compliance issufficiently great to deter the owner from proceeding withhis planned development." Id., at 917. The city of Tigardhas demonstrated that its plan is rational and impartialand that the conditions at issue are "conducive tofulfillment of authorized planning objectives." Dolan, onthe other hand, has offered no evidence that her burden ofcompliance has any impact at all on the value orprofitability of her planned development. Following theteaching of the cases on which it purports to rely, theCourt should not isolate the burden associated with theloss of the power to exclude [*403] from an evaluationof the benefit to be derived from the permit to enlarge thestore and the parking lot.

The Court's assurances that its "roughproportionality" test leaves ample room for cities topursue the "commendable task of land use planning,"ante, at 396 -- even twice avowing that "no precisemathematical calculation is required," ante, at 391, 395 --are wanting given the result that test compels here. Underthe Court's approach, a city must not only "quantify itsfindings," ante, at 395, and make "individualizeddeterminations" with respect to the nature and the extentof the relationship between the conditions and the impact,ante, at 391, 393, but also demonstrate "proportionality."The correct inquiry should instead concentrate [***328]on whether the required nexus is present and venturebeyond considerations of a condition's nature orgermaneness only if the developer establishes that aconcededly germane condition is so grosslydisproportionate to the proposed development's adverseeffects that it manifests motives other than land useregulation on the part of the city. 5 [**2326] Theheightened requirement the Court imposes on cities iseven more unjustified when all the tools needed to

resolve the questions presented by this case can begarnered from our existing case law.

5 Dolan's attorney overstated the danger when hesuggested at oral argument that without somerequirement for proportionality, "the City couldhave found that Mrs. Dolan's new store wouldhave increased traffic by one additional vehicletrip per day [and] could have required her todedicate 75, 95 percent of her land for a wideningof Main Street." Tr. of Oral Arg. 52-53.

III

Applying its new standard, the Court finds twodefects in the city's case. First, while the record wouldadequately support a requirement that Dolan maintain theportion of the floodplain on her property as undevelopedopen space, it does not support the additional requirementthat the flood-plain be dedicated to the city. Ante, at392-395. Second, [*404] while the city adequatelyestablished the traffic increase that the proposeddevelopment would generate, it failed to quantify theoffsetting decrease in automobile traffic that the bike pathwill produce. Ante, at 395-396. Even under the Court'snew rule, both defects are, at most, nothing more thanharmless error.

In her objections to the floodplain condition, Dolanmade no effort to demonstrate that the dedication of thatportion of her property would be any more onerous than asimple prohibition against any development on thatportion of her property. Given the commercial characterof both the existing and the proposed use of the propertyas a retail store, it seems likely that potential customers"trampling along petitioner's floodplain," ante, at 393, aremore valuable than a useless parcel of vacant land.Moreover, the duty to pay taxes and the responsibility forpotential tort liability may well make ownership of thefee interest in useless land a liability rather than an asset.That may explain why Dolan never conceded that shecould be prevented from building on the floodplain. Thecity attorney also pointed out that absent a dedication,property owners would be required to "build on their ownland" and "with their own money" a storage facility forthe water runoff. Tr. of Oral Arg. 30-31. Dolanapparently "did have that option," but chose not to seek it.Id., at 31. If Dolan might have been entitled to a varianceconfining the city's condition in a manner this Courtwould accept, her failure to seek that narrower form ofrelief at any stage of the state administrative and judicial

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proceedings clearly should preclude that relief in thisCourt now.

The Court's rejection of the bike path conditionamounts to nothing more than a play on words. Everyoneagrees that the bike path "could" offset some of theincreased traffic flow that the larger store will generate,but the findings do not unequivocally state that it will doso, or tell [***329] us just how many cyclists willreplace motorists. Predictions on such matters areinherently nothing more than estimates. Certainly [*405]the assumption that there will be an offsetting benefithere is entirely reasonable and should suffice whether itamounts to 100 percent, 35 percent, or only 5 percent ofthe increase in automobile traffic that would otherwiseoccur. If the Court proposes to have the federal judiciarymicro-manage state decisions of this kind, it is indeedextending its welcome mat to a significant new class oflitigants. Although there is no reason to believe that statecourts have failed to rise to the task, property ownershave surely found a new friend today.

IV

The Court has made a serious error by abandoningthe traditional presumption of constitutionality andimposing a novel burden of proof on a city implementingan admittedly valid comprehensive land use plan. Evenmore consequential than its incorrect disposition of thiscase, however, is the Court's resurrection of a species ofsubstantive due process analysis that it firmly rejecteddecades ago. 6

6 See, e. g., Ferguson v. Skrupa, 372 U.S. 726,10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963).

The Court begins its constitutional analysis by citingChicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239,41 L. Ed. 979, 17 S. Ct. 581 (1897), for the propositionthat the Takings Clause of the Fifth Amendment is"applicable to the States through the Fourteenth[**2327] Amendment." Ante, at 383. That opinion,however, contains no mention of either the TakingsClause or the Fifth Amendment; 7 it held that theprotection afforded by the Due Process Clause of theFourteenth Amendment extends to matters of substanceas well as procedure, 8 and that the substance [*406] of"the due process of law enjoined by the FourteenthAmendment requires compensation to be made oradequately secured to the owner of private property takenfor public use under the authority of a State." 166 U.S. at

235, 236-241. It applied the same kind of substantive dueprocess analysis more frequently identified with a betterknown case that accorded similar substantive protectionto a baker's liberty interest in working 60 hours a weekand 10 hours a day. See Lochner v. New York, 198 U.S.45, 49 L. Ed. 937, 25 S. Ct. 539 (1905). 9

7 An earlier case deemed it "well settled" thatthe Takings Clause "is a limitation on the powerof the Federal government, and not on the States."Pumpelly v. Green Bay Co., 80 U.S. 166, 13 Wall.166, 177, 20 L. Ed. 557 (1872).8 The Court held that a State "may not, by any ofits agencies, disregard the prohibitions of theFourteenth Amendment. Its judicial authoritiesmay keep within the letter of the statuteprescribing forms of procedure in the courts andgive the parties interested the fullest opportunityto be heard, and yet it might be that its final actionwould be inconsistent with that amendment. Indetermining what is due process of law regardmust be had to substance, not to form." Chicago,B. & Q. R. Co. v. Chicago, 166 U.S. 226,234-235, 41 L. Ed. 979, 17 S. Ct. 581 (1897).9 The Lochner Court refused to presume thatthere was a reasonable connection between theregulation and the state interest in protecting thepublic health. 198 U.S. at 60-61. A similarrefusal to identify a sufficient nexus between anenlarged building with a newly paved parking lotand the state interests in minimizing the risks offlooding and traffic congestion proves fatal to thecity's permit conditions in this case under theCourt's novel approach.

[***330] Later cases have interpreted theFourteenth Amendment's substantive protection againstuncompensated deprivations of private property by theStates as though it incorporated the text of the FifthAmendment's Takings Clause. See, e. g., KeystoneBituminous Coal Assn. v. DeBenedictis, 480 U.S. 470,481, n. 10, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987).There was nothing problematic about that interpretationin cases enforcing the Fourteenth Amendment againststate action that involved the actual physical invasion ofprivate property. See Loretto v. Teleprompter ManhattanCATV Corp., 458 U.S. 419, 427-433, 73 L. Ed. 2d 868,102 S. Ct. 3164 (1982); Kaiser Aetna v. United States,444 U.S. at 178-180. Justice Holmes charted a significantnew course, however, when he opined that a state law

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making it "commercially impracticable to mine certaincoal" had "very nearly the same effect for constitutionalpurposes as appropriating or destroying it." PennsylvaniaCoal Co. v. Mahon, 260 U.S. 393, 414, 67 L. Ed. 322, 43S. Ct. 158 (1922). The so-called "regulatory [*407]takings" doctrine that the Holmes dictum 10 kindled hasan obvious kinship with the line of substantive dueprocess cases that Lochner exemplified. Besides havingsimilar ancestry, both doctrines are potentiallyopen-ended sources of judicial power to invalidate stateeconomic regulations that Members of this Court view asunwise or unfair.

10 See Keystone Bituminous Coal Assn. v.DeBenedictis, 480 U.S. at 484 (explaining whythis portion of the opinion was merely"advisory").

This case inaugurates an even more recent judicialinnovation than the regulatory takings doctrine: theapplication of the "unconstitutional conditions" label to amutually beneficial transaction between a property ownerand a city. The Court tells us that the city's refusal togrant Dolan a discretionary benefit infringes her right toreceive just compensation for the property interests thatshe has refused to dedicate to the city "where the propertysought has little or no relationship to the benefit." 11

Although it is [**2328] well settled that a governmentcannot deny a benefit on a basis that infringesconstitutionally protected interests -- "especially [one's]interest in freedom of speech," Perry v. Sindermann, 408U.S. 593, 597, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) --the "unconstitutional conditions" doctrine provides aninadequate framework in which to analyze this case. 12

11 Ante, at 385. The Court's entire explanationreads: "Under the well-settled doctrine of'unconstitutional conditions,' the government maynot require a person to give up a constitutionalright -- here the right to receive just compensationwhen property is taken for a public use -- inexchange for a discretionary benefit conferred bythe government where the benefit sought has littleor no relationship to the property."12 Although it has a long history, see Home Ins.Co. v. Morse, 87 U.S. 445, 20 Wall. 445, 451, 22L. Ed. 365 (1874), the "unconstitutionalconditions" doctrine has for just as long sufferedfrom notoriously inconsistent application; it hasnever been an overarching principle of

constitutional law that operates with equal forceregardless of the nature of the rights and powersin question. See, e. g., Sunstein, Why theUnconstitutional Conditions Doctrine is anAnachronism, 70 B. U. L. Rev. 593, 620 (1990)(doctrine is "too crude and too general to providehelp in contested cases"); Sullivan,Unconstitutional Conditions, 102 Harv. L. Rev.1415, 1416 (1989) (doctrine is "riven withinconsistencies"); Hale, UnconstitutionalConditions and Constitutional Rights, 35 Colum.L. Rev. 321, 322 (1935) ("The Supreme Court hassustained many such exertions of power evenafter announcing the broad doctrine that wouldinvalidate them"). As the majority's case citationssuggest, ante, at 385, modern decisions invokingthe doctrine have most frequently involved FirstAmendment liberties, see also, e. g., Connick v.Myers, 461 U.S. 138, 143-144, 75 L. Ed. 2d 708,103 S. Ct. 1684 (1983); Elrod v. Burns, 427 U.S.347, 361-363, 49 L. Ed. 2d 547, 96 S. Ct. 2673(1976) (plurality opinion); Sherbert v. Verner, 374U.S. 398, 404, 10 L. Ed. 2d 965, 83 S. Ct. 1790(1963); Speiser v. Randall, 357 U.S. 513,518-519, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958).But see Posadas de Puerto Rico Associates v.Tourism Co. of P. R., 478 U.S. 328, 345-346, 92L. Ed. 2d 266, 106 S. Ct. 2968 (1986) ("Thegreater power to completely ban casino gamblingnecessarily includes the lesser power to banadvertising of casino gambling"). The necessaryand traditional breadth of municipalities' power toregulate property development, together with theabsence here of fragile and easily "chilled"constitutional rights such as that of free speech,make it quite clear that the Court is really writingon a clean slate rather than merely applying"well-settled" doctrine. Ante, at 385.

[*408] Dolan has no right to be compensated for ataking unless the city [***331] acquires the propertyinterests that she has refused to surrender. Since no takinghas yet occurred, there has not been any infringement ofher constitutional right to compensation. See Preseault v.ICC, 494 U.S. 1, 11-17, 108 L. Ed. 2d 1, 110 S. Ct. 914(1990) (finding takings claim premature because propertyowner had not yet sought compensation under TuckerAct); Hodel v. Virginia Surface Mining & ReclamationAssn., Inc., 452 U.S. 264, 294-295, 69 L. Ed. 2d 1, 101 S.Ct. 2352 (1981) (no taking where no one "identified any

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property . . . that has allegedly been taken").

Even if Dolan should accept the city's conditions inexchange for the benefit that she seeks, it would notnecessarily follow that she had been denied "justcompensation" since it would be appropriate to considerthe receipt of that benefit in any calculation of "justcompensation." See Pennsylvania Coal Co. v. Mahon,260 U.S. at 415 (noting that an "average reciprocity ofadvantage" was deemed to justify many laws); Hodel v.Irving, 481 U.S. 704, 715, 95 L. Ed. 2d 668, 107 S. Ct.2076 (1987) (such "'reciprocity of advantage'" weighed infavor of a statute's constitutionality). [*409] Particularlyin the absence of any evidence on the point, we shouldnot presume that the discretionary benefit the city hasoffered is less valuable than the property interests thatDolan can retain or surrender at her option. But even ifthat discretionary benefit were so trifling that it could notbe considered just compensation when it has "little or norelationship" to the property, the Court fails to explainwhy the same value would suffice when the requirednexus is present. In this respect, the Court's reliance onthe "unconstitutional conditions" doctrine is assuredlynovel, and arguably incoherent. The city's conditions areby no means immune from constitutional scrutiny. Thelevel of scrutiny, however, does not approximate the kindof review that would apply if the city had insisted on asurrender of Dolan's First Amendment rights in exchangefor a building [**2329] permit. One can only hope thatthe Court's reliance today on First Amendment cases, seeante, at 385 (citing Perry v. Sindermann, supra, andPickering v. Board of Ed. of Township High SchoolDist. 205, Will Cty., 391 U.S. 563, 568, 88 S. Ct. 1731, 20L. Ed. 2d 811 (1968)), and its candid disavowal of theterm [***332] "rational basis" to describe its newstandard of review, see ante, at 391, do not signify areassertion of the kind of superlegislative power theCourt exercised during the Lochner era.

The Court has decided to apply its heightenedscrutiny to a single strand -- the power to exclude -- in thebundle of rights that enables a commercial enterprise toflourish in an urban environment. That intangible interestis undoubtedly worthy of constitutional protection --much like the grandmother's interest in deciding which ofher relatives may share her home in Moore v. EastCleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932(1977). Both interests are protected from arbitrary stateaction by the Due Process Clause of the FourteenthAmendment. It is, however, a curious irony that Members

of the majority in this case would impose an almostinsurmountable burden of proof on the property owner inthe Moore case [*410] while saddling the city with aheightened burden in this case. 13

13 The author of today's opinion joined JusticeStewart's dissent in Moore v. East Cleveland, 431U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977).There the dissenters found it sufficient, inresponse to my argument that the zoningordinance was an arbitrary regulation of propertyrights, that "if the ordinance is a rational attemptto promote 'the city's interest in preserving thecharacter of its neighborhoods,' Young v.American Mini Theatres, [Inc.,] 427 U.S. 50, 71,49 L. Ed. 2d 310, 96 S. Ct. 2440 (opinion ofSTEVENS, J.), it is . . . a permissible restrictionon the use of private property under Euclid v.Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303,47 S. Ct. 114, and Nectow v. Cambridge, 277 U.S.183, 72 L. Ed. 842, 48 S. Ct. 447." 431 U.S. at540, n. 10. The dissent went on to state that mycalling the city to task for failing to explain theneed for enacting the ordinance "placed theburden on the wrong party." Ibid. (emphasisadded). Recently, two other Members of today'smajority severely criticized the holding in Moore.See United States v. Carlton, 512 U.S. 26, 40-42,129 L. Ed. 2d 22, 114 S. Ct. 2018 (1994)(SCALIA, J., concurring in judgment); see alsoid., at 39 (SCALIA, J., concurring in judgment)(calling the doctrine of substantive due process"an oxymoron").

In its application of what is essentially the doctrineof substantive due process, the Court confuses the pastwith the present. On November 13, 1922, the village ofEuclid, Ohio, adopted a zoning ordinance that effectivelyconfiscated 75 percent of the value of property owned bythe Ambler Realty Company. Despite its recognition thatsuch an ordinance "would have been rejected as arbitraryand oppressive" at an earlier date, the Court (over thedissent of Justices Van Devanter, McReynolds, andButler) upheld the ordinance. Today's majority shouldheed the words of Justice Sutherland:

"Such regulations are sustained, underthe complex conditions of our day, forreasons analogous to those which justifytraffic regulations, which, before the

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advent of automobiles and rapid transitstreet railways, would have beencondemned as fatally arbitrary andunreasonable. And in this there is noinconsistency, for while the meaning ofconstitutional guaranties never varies, thescope of their application must expand orcontract [*411] to meet the new anddifferent conditions which are constantlycoming within the field of their operation.In a changing world, it is impossible that itshould be otherwise." Village of Euclid v.Ambler Realty Co., 272 U.S. 365, 387, 71L. Ed. 303, 47 S. Ct. 114 (1926).

[***333] In our changing world one thing iscertain: uncertainty will characterize predictions aboutthe impact of new urban developments on the risks offloods, earthquakes, traffic congestion, or environmentalharms. When there is doubt concerning the magnitude ofthose impacts, the public interest in averting them mustoutweigh the private interest of the commercialentrepreneur. If the government can demonstrate that theconditions it has imposed in a land use permit arerational, impartial and conducive to fulfilling the aims ofa valid land use plan, a strong presumption [**2330] ofvalidity should attach to those conditions. The burden ofdemonstrating that those conditions have unreasonablyimpaired the economic value of the proposedimprovement belongs squarely on the shoulders of theparty challenging the state action's constitutionality. Thatallocation of burdens has served us well in the past. TheCourt has stumbled badly today by reversing it.

I respectfully dissent.

JUSTICE SOUTER, dissenting.

This case, like Nollan v. California CoastalComm'n, 483 U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141(1987), invites the Court to examine the relationshipbetween conditions imposed by development permits,requiring landowners to dedicate portions of their land foruse by the public, and governmental interests inmitigating the adverse effects of such development.Nollan declared the need for a nexus between the natureof an exaction of an interest in land (a beach easement)and the nature of governmental interests. The Court treatsthis case as raising a further question, not about thenature, but about the degree, of connection required

between such an exaction and the [*412] adverse effectsof development. The Court's opinion announces a test toaddress this question, but as I read the opinion, the Courtdoes not apply that test to these facts, which do not raisethe question the Court addresses.

First, as to the floodplain and greenway, the Courtacknowledges that an easement of this land for openspace (and presumably including the five feet required forneeded creek channel improvements) is reasonablyrelated to flood control, see ante, at 387, 392-393, butargues that the "permanent recreational easement" for thepublic on the greenway is not so related, see ante, at393-395. If that is so, it is not because of any lack ofproportionality between permit condition and adverseeffect, but because of a lack of any rational connection atall between exaction of a public recreational area and thegovernmental interest in providing for the effect ofincreased water runoff. That is merely an application ofNollan's nexus analysis. As the Court notes, "ifpetitioner's proposed development had somehowencroached on existing greenway space in the city, itwould have been reasonable to require petitioner toprovide some alternative greenway space for the public."Ante, at 394. But that, of course, was not the fact, and thecity of Tigard never sought to justify the public accessportion of the dedication as related to flood control. Itmerely argued that whatever recreational uses were madeof the bicycle path and the 1-foot [***334] edge oneither side were incidental to the permit conditionrequiring dedication of the 15-foot easement for an8-foot-wide bicycle path and for flood control, includingopen space requirements and relocation of the bank of theriver by some 5 feet. It seems to me such incidentalrecreational 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 therecreational easement and a purpose never put forth as ajustification by the city, the Court unsurprisingly finds arecreation area to be unrelated to flood control.

[*413] Second, as to the bicycle path, the Courtagain acknowledges the "theor[etically]" reasonablerelationship between "the city's attempt to reduce trafficcongestion by providing [a bicycle path] for alternativemeans of transportation," ante, at 387, and the "correct"finding of the city that "the larger retail sales facilityproposed by petitioner will increase traffic on the streetsof the Central Business District," ante, at 395. The Courtonly faults the city for saying that the bicycle path

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"could" rather than "would" offset the increased trafficfrom the store, ante, at 396. That again, as far as I cantell, is an application of Nollan, for the Court holds thatthe stated connection ("could offset") between trafficcongestion and bicycle paths is too tenuous; only if thebicycle path "would" offset the increased traffic by someamount could the bicycle path be said to be related to thecity's legitimate interest in reducing traffic congestion.

[**2331] I cannot agree that the application ofNollan is a sound one here, since it appears that the Courthas placed the burden of producing evidence ofrelationship on the city, despite the usual rule in casesinvolving the police power that the government ispresumed to have acted constitutionally. * Having thusassigned the burden, the Court concludes that the cityloses based on one word ("could" instead of "would"),and despite the fact that this record shows the connectionthe Court looks for. Dolan has put forward no evidencethat [*414] the burden of granting a dedication for thebicycle path is unrelated in kind to the anticipatedincrease in traffic congestion, nor, if there exists arequirement that the relationship be related in degree, hasDolan shown that the exaction fails any such test. Thecity, by contrast, calculated the increased traffic flow thatwould result from Dolan's proposed development to be435 trips per day, and its Comprehensive Plan, appliedhere, relied on studies showing the link betweenalternative modes of transportation, including bicyclepaths, and reduced street traffic congestion. See, e. g.,App. to Brief for Respondent A-5, quoting City ofTigard's Comprehensive [***335] Plan ("'Bicycle andpedestrian pathway systems will result in some reductionof automobile trips within the community'"). Nollan,therefore, is satisfied, and on that assumption the city'sconditions should not be held to fail a further roughproportionality test or any other that might be devised togive meaning to the constitutional limits. As Members of

this Court have said before, "the common zoningregulations requiring subdividers to . . . dedicate certainareas to public streets, are in accord with ourconstitutional traditions because the proposed propertyuse would otherwise be the cause of excessivecongestion." Pennell v. San Jose, 485 U.S. 1, 20, 99 L.Ed. 2d 1, 108 S. Ct. 849 (1988) (SCALIA, J., concurringin part and dissenting in part). The bicycle path permitcondition is fundamentally no different from these.

* See, e. g., Goldblatt v. Hempstead, 369 U.S.590, 594-596, 8 L. Ed. 2d 130, 82 S. Ct. 987(1962); United States v. Sperry Corp., 493 U.S.52, 60, 107 L. Ed. 2d 290, 110 S. Ct. 387 (1989).The majority characterizes this case as involvingan "adjudicative decision" to impose permitconditions, ante, at 391, n. 8, but the permitconditions were imposed pursuant to Tigard'sCommunity Development Code. See, e. g., §18.84.040, App. to Brief for Respondent B-26.The adjudication here was of Dolan's requestedvariance from the permit conditions otherwiserequired to be imposed by the Code. This caseraises no question about discriminatory, or"reverse spot," zoning, which "singles out aparticular parcel for different, less favorabletreatment than the neighboring ones." PennCentral Transp. Co. v. New York City, 438 U.S.104, 132, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978).

In any event, on my reading, the Court's conclusionsabout the city's vulnerability carry the Court no furtherthan Nollan has gone already, and I do not view this caseas a suitable vehicle for taking the law beyond that point.The right case for the enunciation of takings doctrineseems hard to spot. See Lucas v. South Carolina CoastalCouncil, 505 U.S. 1003, 1076, 120 L. Ed. 2d 798, 112 S.Ct. 2886 (1992) (statement of SOUTER, J.).

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