The state of Oregon enacted a comprehensive land use management program in 1973 that required all Oregon cities to adopt new comprehensive land use plans that were consistent with statewide planning goals. The city of Tigard, a community of some 30,000 residences on the southwest edge of Portland, developed a comprehensive plan and codified it as its Community Development Code (CDC). The CDC required property owners in the area zoned as the Central Business District to comply with a 15 percent open space requirement, limiting total site coverage, including all structures and paved parking, to 85 percent of the parcel. 

It also required that any new development facilitate a plan for a pedestrian/bicycle pathway by dedicating land for that purpose wherever required in the plan. The city also adopted a master drainage plan that suggested a series of improvements to the Fanno Creek Basin. Florence Dolan owned a plumbing and electric supply store located on Main Street in the central business district of Tigard. The 1.67-acre property was adjacent to Fanno Creek, and a portion of it was in the 100-year floodplain and unusable for commercial development. Dolan applied to the city for a permit to redevelop the site, proposing to nearly double the size of her store and pave a 39-space parking lot.

The City Planning Commission granted the permit application, subject to conditions imposed by the city’s CDC. The commission required Dolan to dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and to dedicate an additional strip of land adjacent to the floodplain as a pedestrian/bicycle pathway. The dedication required by the condition encompassed approximately 7,000 square feet, or roughly 10 percent, of the property. Dolan requested variances from the CDC standards, as permitted in case of undue or unnecessary hardship, but the request was denied. The commission found that customers and employees of the store could utilize the pathway, that it would offset some of the traffic demand the store created on nearby streets, and that the increased storm water runoff from the parking lot would add to the public need to manage the stream channel and floodplain for drainage purposes.

Dolan appealed to the Land Use Board of Appeals on the ground that the city’s dedication requirements were not related to the proposed development, and therefore, those requirements constituted an uncompensated taking of her property under the Fifth Amendment. The board denied the appeal, finding a “reasonable relationship” between alleviating the impacts of the proposed development and the required dedications. The Oregon Court of Appeals and its Supreme Court affirmed, and Dolan appealed to the United States Supreme Court. Did the condition placed by the city of Tigard constitute an unconstitutional taking of Dolan’s property for public purposes without payment of just compensation?