A HUGE VICTORY FOR PROPERTY RIGHTS
WON BY THE OIA LEGAL CENTER IN THE U.S. SUPREME COURT
The United States Supreme Court sent shock waves all across the country when it struck down the City of Tigard’s attempt to “take” a portion of the Dolan family’s property for a public bikepath as a condition to granting a permit to expanding their plumbing store. The Washington Times, commenting on the Dolan decision, said “The Dolan ruling represents the Supreme Court’s stoutest defense of private property witnessed in 50 years.”
Convinced that the City violated the Dolans’ property rights under the 5th and 14th Amendments to the U.S. Constitution, the OIA Legal Center stepped in to represent the Dolans in appeals that took the case all the way to the U.S. Supreme Court.
Fortunately, the high court (which takes less than 2% of the cases appealed to it), recognized the need to address the widespread use of the permitting process by government to “extort” property or money (by imposing conditions on permits that are not justified by the development).
In its decision upholding the Dolans’ rights, the Supreme Court established a new “property rights” protection standard every level of government in the nation must comply with. It requires that governments must demonstrate that conditions they impose on permits must be “roughly proportional” to the adverse impacts of the development, based upon an “individualized determination” that the condition is related both in nature and extent to such impacts.
The court found that the bikepath condition imposed by the City of Tigard violated this requirement, and remanded the case back to the City, which then tried to impose a slightly modified bikepath condition which also violated the Dolan decision..
Based on the high court decision, the Dolans sought compensation in Circuit Court for the unconstitutional takings. In the middle of a trial before a jury, the City agreed to pay $1,500,000 in settlement of the Dolan family’s claim (which included compensation as well as attorney fees). To put the case in perspective, the City could have purchased the land (it wanted for a bikepath) for $14,000.
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While the decision has curbed, to some extent, the use of “conditions” on building permits to “extort” property or money, there is still considerable abuse by some local governments. A high priority for Oregonians In Action Legal Center is helping property owners challenge conditions that violate the Dolan decision. For example, Dave Hunnicutt, Director of Legal Affairs, is handling an appeal to the Oregon Court of Appeals in Rogers Machinery Co. v. City of Tigard, a case involving imposition of a fee the Legal Center believes violates Dolan.