Reading Dolan v. City of Tigard.

I. The Stories of Dolan

There are different ways to read the story of Dolan v. City of Tigard.(1) One is the plaintiff's story: the story of Mrs. Dolan, an elderly widow, who wishes to expand the family hardware store, but who is prevented from doing so by the city unless she agrees to give a portion of her land to the city to fulfill its master plan for a greenway (a park area) and bike path. According to the plaintiff, she is the victim of government extortion, forced to bear the burden of fulfilling a portion of the city's master plan at her private expense as a condition of making virtually any improvement to her property.

Another story is the city's: the owner of one of the largest chains of hardware stores in the state wishes to double the size of the original store and pave most of the remaining unimproved land. This will cause substantially increased storm water runoff on the already overburdened Fanno Creek and additional automobile traffic in already overcrowded downtown Tigard. The city proposes to have the property owner set aside land adjoining the creek to kill two birds with one stone: to increase the water carrying capacity of Fanno Creek and to contain a bike path to reduce the traffic congestion. According to the city, the plaintiff simply wishes to maximize her private profit while imposing costs and burdens on the city and its residents.

Which of these stories is true? There is no doubt that the City of Tigard had a master plan and that this master plan provided for a greenway and bike path along Fanno Creek. This master plan and its layout of the greenway and the bike path preceded by years Mrs. Dolan's plan and application to enlarge her hardware store. Moreover, it is true that most significant improvements to property abutting Fanno Creek automatically triggered the required dedication of land for the greenway and bike path as a condition for a building permit. In that sense, Mrs. Dolan's building permit application was merely a fortuitous event that triggered the waiting plan into execution--at Mrs. Dolan's expense. At the same time, there is no question that Mrs. Dolan's store expansion would increase the storm water runoff from her property into Fanno Creek by several orders of magnitude(2) and that Fanno Creek's storm water carrying capacity has been overwhelmed by development in downtown Tigard.(3) Similarly, Mrs. Dolan hopes to increase the traffic to her expanded store,(4) which would increase the traffic congestion in downtown Tigard (albeit marginally), an area that is already severely congested.(5) Indeed, it was increased density of development in downtown Tigard, with its associated frequent flooding of Fanno Creek and traffic congestion, that led the city to provide, among other things, for the greenway and bike path as partial antidotes to the problems of increased urbanization. Thus, in a very real sense, both stories are true. And that is one of the reasons why Dolan is such an interesting case. But is it significant? Does it change the law of takings?

Mrs. Dolan argued that the city's condition was an uncompensated taking of private property, building upon the Supreme Court's decision in Nollan v. California Coastal Commission.(6) There, California had required beachfront property owners to grant an easement to the public along the beach in front of their property as a condition for development of their property. The Court found this unconstitutional unless the owners were compensated, because the government condition did not bear a sufficient relationship to the state's legitimate public interest in mitigating any burdens associated with the development of beachfront property.(7) What sort of relationship would be sufficient was left murky in Nollan, because California's condition "utterly fail[ed] to further the end advanced as the justification for the [condition]" and lacked any "essential nexus" between the means used and the end to be achieved.8 Accordingly, the Court said, it did not need to decide whether California's proposed test of a reasonable relationship was the proper means/end relationship.(9) Nevertheless, at other places, the Court referred to a requirement that the condition "substantially advance" the purpose sought to be achieved.(10) And much of the scholarly commentary after Nollan related to Nollan's supposed revival of a Lochnerian hard-look at a government determination of a relationship between a legitimate public purpose and the means chosen to further that purpose.(11) It was this hard-look that Mrs. Dolan sought from the courts, believing that any master plan, like Tigard's, that contained conditions on building permits not tied to the particular development requested, would, like the California Coastal Commission's strategy for obtaining public beach access, be doomed to defeat under Nollan. The Oregon courts, however, read Nollan as did other courts, to impose only a requirement that there be an "essential nexus" between the condition exacted and the purpose to be achieved,(12) and that nexus was found to be met in Dolan. 13 But then the Supreme Court granted certiorari.

To Mrs. Dolan and her supporters, her case provided a test case of the conflict between government planning and individual property rights. Similarly, to the City of Tigard and the amici in its support, this case posed a threat to land use planning generally and the use of detailed master plans in particular. Potentially, the case could have major effects on land development and land use planning throughout the United States.

II. The Court Decision

In a five-to-four decision, the Supreme Court flinched.(14) It clearly found Mrs. Dolan's story more credible in the circumstances of the case, but it was not willing to rule categorically in her favor, remanding the case for further hearings.(15)

Chief Justice Rehnquist, writing for the majority, found that prevention of flooding and reduction of traffic congestion were both legitimate public purposes.(16) Additionally, the Court found that there was an "essential nexus" between these purposes and the city's conditions on Mrs. Dolan's building permit.(17) At this point, however, the Court said that it must determine whether "the degree of the exactions . . . bear[s] the required relationship to the projected impact of petitioner's . . . development."(18) In other words, while the city's condition related to the nature of the burdens caused by Mrs. Dolan's development, it was still necessary to determine whether the condition was properly tailored to the extent of the burden. This step, the Court said, was never reached in Nollan.(19) It might also be said that Nollan gave no hint that there would be a second step.

Students of constitutional law know that categorizing the required relationship between government ends and means is probably the most important factor in providing individual protection against government action. For example, classifications based on race trigger "strict scrutiny," which means that the required relationship must be a "necessary" one, or, as sometimes expressed, very closely tailored, with little or no over- or underinclusion.(20) On the other hand, economic classifications--at least in the context of the Equal Protection Clause--garner only "rational basis" scrutiny, where any rational relationship will satisfy the required scrutiny.(21) At its most extreme, rational basis scrutiny requires the person challenging government action to prove the negative, that there is no possible rational basis, rather than requiring the government to prove there is a rational basis.(22)

In determining how to characterize the required relationship between a government land use condition and the burdens caused by land development, the Court purported to look to state decisions for guidance. It rejected the equivalent of strict scrutiny, the "specifically and uniquely attributable" test,(23) allegedly used by Illinois. And it rejected the equivalent of the rational basis test, a "very generalized statement[ ] as to the necessary connection,"(24) attributed to Montana and New York. Rather the Court adopted "an intermediate position," which it termed the "rough proportionality" test.(25) The Court quoted the Nebraska Supreme Court's articulation of the test: "whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit."(26) The Court's own explanation in the context of this case was limited to one sentence: "No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development."(27)

Applying this new test to Tigard's conditions, the Court found the relationship lacking. With respect to flooding, the Court suggested that keeping the floodplain free of development would be appropriate, "[b]ut the city demanded more--. . . it also wanted petitioner's property along Fanno Creek for its Greenway system. The city never said why a public greenway, as opposed to a private one, was required in the interest of flood control."(28) With respect to the bike path, the Court made the following analysis:

Dedications for streets, sidewalks, and other public ways are generally reasonable

exactions to avoid excessive congestion from a proposed property use.

But on the record before us, the city has not met its burden of demonstrating

that the additional number of vehicle and bicycle trips generated by the petitioner's

development reasonably relate to the city's requirement for a dedication

of the pedestrian/bicycle pathway easement. The city simply found that

the creation of the pathway "could offset some of the traffic demand . . . and

lessen the increase in traffic congestion."

. . . "[This] is a far cry from a finding that the bicycle pathway system will,

or is likely to, offset some of the traffic demand."(29)

In dissent, Justice Stevens, with whom Justices Blackmun and Ginsburg concurred, took issue with the Court's creation of the second step, the heightened scrutiny test, beyond Nollan's essential nexus test.(30) Moreover, Justice Stevens took particular issue with the Court's requirement for the government unit to carry the burden of proof of the required relationship, rather than requiring the challenger to prove the lack of the required relationship.(31)

Justice Souter, dissenting separately, queried why the Court said it needed to create the second step of the test, because in his view of the Court's analysis, Tigard had failed to demonstrate the essential nexus between flood control and dedicating the land to the city, on the one hand, and reducing traffic congestion and creation of the bike path on the other.(32) Justice Souter, however, would leave the burden of proof to the petitioner, rather than the city, and in his view the petitioner had failed to prove a lack of essential nexus.(33)

III. A New Lochnerism?

So, how significant is Dolan?

Both dissents suggest that the majority's heightened scrutiny is inconsistent with prior decisions.(34) Justice Stevens explicitly invokes the specter of Lochner v. New York.(35) While there is no doubt that the rough proportionality test is new, claims of inconsistency with past case law do not seem well taken. Justice Stevens's essential error is captured in his sentence: "The so-called `regulatory takings' doctrine that the Holmes dictum [that a government regulation can take property if it goes "too far"] kindled has an obvious kinship with the line of substantive due process cases that Lochner exemplified."(36) Justice Stevens's error is that Holmes dissented in Lochner and did not share in the substantive due process notion that Lochner reflected, whereby courts could create unenumerated rights for constitutional protection. Rather, Holmes was willing to give effect, at least in extreme cases, to the explicit limitations contained in the Bill of Rights.(37) Thus, he could find a violation of the Takings Clause when a regulation went "too far," even while he was not willing to find substantive limitations on government regulations implicitly contained in the Due Process Clause.

Similarly, there is no inconsistency for Justice Scalia, who has labeled "substantive due process" an oxymoron,(38) to sign on to Dolan, for as the Court itself says: "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances."(39) In short, a tendency to protect property interests under the Takings Clause does not necessarily signal or suggest a rebirth of Lochnerism.

This analysis, however, relies upon Dolan being a Takings Clause case, not just an economic regulation case, and this characterization is not necessarily self-evident. Justice Stevens, relying upon an analysis contained in a law review article,(40) argues that the conditions imposed by the City of Tigard are merely business regulations, subject only to a rational basis examination with the burden on the complainant.(41) The Dolan majority concedes that ordinary land use regulation that does not deny an owner economically viable use of his property, which Tigard's permit condition did not, might generally be characterized as economic regulation,(42) which is normally subject to relatively lax scrutiny. Two factors, the Court said, distinguished Dolan from the ordinary case. First, the ordinary zoning case involves "essentially legislative determinations classifying entire areas of the city, whereas here the city made an adjudicative decision."(43) Second, ordinary land use regulations merely restrict use, but here the city required Mrs. Dolan to deed portions of her property to the city. The Court did not state whether either of these two factors alone would have sufficed to distinguish Dolan from the ordinary case or whether it required both together. Nevertheless, the Court made clear that its new analysis and rough proportionality test were limited to cases distinguishable from normal land use cases. Accordingly, the new test should not be applied to general, run-of-the-mill land use decisions. Only when at least one, if not both, of the two factors is present does the new test, with its stricter than normal scrutiny, apply.

IV. The First Distinguishing Factor

In the course of the opinion, the Court does not make much of the first factor--that traditional zoning cases involve "essentially legislative determinations classifying entire areas of the city, whereas here the city made an adjudicative decision."(44) What conclusions we are to draw from it are unclear. The Court does not explain how this distinction is relevant to the level of scrutiny that might be appropriate to land use decisions.(45) Indeed, the Court's characterization of the case seems not entirely correct. After all, the conditions that Mrs. Dolan challenged were legislative decisions made as part of the master planning process applicable to the entire downtown area; they were not derived from an individual adjudication in her particular case. That was precisely Mrs. Dolan's complaint: that the city had adopted these conditions without regard to her particular case, that her permit application was merely a fortuitous event that triggered the application of the already existing terms of the master plan. There was an adjudication: the variance request that Mrs. Dolan filed and the city denied. But the Court could not have meant that an adjudication of a variance request is not part of ordinary land use regulation. Such adjudications are the bread and butter of land use legal practice. Moreover, the Court's ultimate decision that the city has the burden of proving the rough proportionality is also out of character with the procedural framework in which a variance request normally arises. The movant, as is the general rule in adjudicatory practice, whether administrative or judicial, has the burden of proof.(46) That is, the person seeking the variance has the burden of proof of showing that the grounds for the variance are satisfied; the city does not have the burden to show that the circumstances do not require a variance.

So what did the Court mean? The only plausible explanation, which is supported by the thrust of Mrs. Dolan's story, is that the Court meant that unlike normal land use legislative decisions that "classify[ ] entire areas of the city,"(47) this legislative decision, the master plan, in effect made decisions that ordinarily would be made in adjudications, because they were (or should have been) dependent on the particulars of a particular property and proposed development. In other words, one of the two factors that distinguishes the Dolan situation from ordinary land use regulation is that in Dolan the local government made an essentially adjudicative decision in its legislative capacity, deciding the condition applicable to a particular property in advance of and without relation to the particular development proposed.

How is this distinction relevant to the issue of whether Dolan is an ordinary land use case, to which only lax scrutiny would be applied, or the extraordinary case, to which stricter scrutiny should apply? The Court did not explain. But again, we may surmise an explanation. Under the Carolene Products footnote,(48) lax scrutiny is appropriate in the run-of-the-mill economic regulation case because there is a presumption of constitutionality in those cases arising from the regularity of the process and the ordinariness of the issues. When, however, there are factors that may undermine the validity of that presumption, a higher degree of scrutiny is called for. In Dolan, the fact that the government decided on the appropriate condition with respect to a particular property before any application for a permit for that property had been filed raised doubts about the government's subsequent explanation tying the condition to the particular application, sufficient doubts as to the regularity of the process to justify a higher degree of scrutiny than otherwise would apply.

Therefore, the first factor distinguishing Dolan from ordinary cases is the existence of a master plan calling for specific pre-determined conditions applicable to particular properties without relation to what might be proposed for those properties, which conditions any significant development would trigger. This is a substantial limitation on the scope of Dolan.

V. The Second Distinguishing Factor

The second factor distinguishing Dolan from the ordinary land use case was the fact that the city required Mrs. Dolan to deed her property to the city, instead of merely restricting her use of her property. The Court focused on this factor to a much greater degree than the first factor, which is hardly surprising in light of the Court's reason for considering these factors: to determine whether Dolan was really a Takings Clause case or only an ordinary land use regulation case. After all, the forced transfer of a fee simple estate in property from a private property owner to the state without just compensation is the paradigm case of an unconstitutional taking. The only distinction between Tigard's condition and the paradigm takings case is that the transfer is not required; it is optional with the land owner. Mrs. Dolan could avoid the transfer merely by not engaging in the new development.

This same issue had been raised and settled in Nollan. There, the state had argued that because the landowner preferred acceptance of the condition (of allowing public access to the beach front) to denial of the permit, the condition must have lesser impact on the owner than denial of the permit. If, therefore, the denial of the permit was not unconstitutional, the condition would not be unconstitutional, because it would be the lesser of the two evils. Justice Scalia, in his inimitable way, rejected this line of argument by suggesting that it would authorize a law that forbids

shouting "Fire!" in a crowded theater but grants exceptions to those who donate $100 to the state treasury.(49) Consequently, the condition itself must be subjected to constitutional scrutiny. In Nollan the Court stated that the condition must "serve[] the same governmental purpose as the development ban" in order to avoid being "an out-and-out plan of extortion."(50) Thus, Dolan, like Nollan before it, was different from ordinary land use cases because the government's conditional requirement of deeding the property to the government, with its potential for out-and-out extortion, triggers the need for stricter scrutiny.

VI. MORE UNCONSTITUTIONAL CONDITIONS?

In Dolan, before the Court launched into its refinement (or expansion) of the nexus test, it claimed that its analysis was driven by precedent regarding "unconstitutional conditions."(51) This was an unfortunate reference. First, the doctrine of unconstitutional conditions is riven with uncertainty, as the dissent's discussion makes clear.(52) Second, the majority did not in fact appear to build its subsequent analysis on the unconstitutional conditions doctrine or cases. Finally, the reference was unfortunate because it was totally unnecessary.

The Court summarized the doctrine as:

the government may not require a person to give up a constitutional right-here

the right to receive just compensation when property is taken for a public

use--in exchange for a discretionary benefit conferred by the government

where the property sought has little or no relationship to the benefit.(53)

The Court then cited two cases involving teachers who were fired because of the exercise of their First Amendment rights.(54) The government authority in each defended on the basis that because the teachers had no right to government employment, they could be fired for any reason. The Court rejected that argument, holding that government could not condition the waiver of First Amendment rights, even to receive a benefit, unless there was a very good reason to make that waiver a condition of employment. Here, the Court said, Mrs. Dolan was arguing that the city had not provided a very good reason for the condition imposed, because it had not identified any special benefits she would receive or burdens she would cause by her development. This argument, of course, is just another way of stating that there must be a sufficient relation between the government condition and the harm the development would cause.

The use of the so-called unconstitutional conditions doctrine as a basis for analysis in Dolan does not help one to understand the issues involved or their resolution. At one level, this is because the unconstitutional conditions doctrine is itself so unclear that its explanatory power is virtually nil. At another level, it is because other than the one, essentially throw-away sentence, the Court itself did not attempt to ground its analysis in unconstitutional condition cases.

A much clearer and more straightforward analysis suggests itself: the condition must itself withstand constitutional scrutiny. This analysis should mean that, were the condition a simple regulation of conduct, it would satisfy constitutional requirements. In Nollan, for example, California might have adopted a simple regulation that anyone whose beach front property blocked the view of the ocean must allow persons access across the beach. In Dolan, the City of Tigard might have adopted an ordinance requiring that anyone bordering drainages for storm water runoff who increased storm water runoff must deed some portion of that drainage to the city to handle that runoff. In substantive effects, these regulations do not differ from the conditional permits actually involved in those cases, but so phrased, the focus of the constitutional analysis is on the regulation itself.(55)

Although the Court did not analyze it in this way in either Nollan or Dolan, the nexus tests arguably focus on the regulation itself. Thus, in Nollan the Court assumed for purposes of argument and in Dolan the Court flatly stated that the denial of the permit would not constitute a taking, because the denial would substantially advance a legitimate state interest and it would not deny the owners all economic use of the property.(56) If the conditions involved in those cases satisfied the nexus tests, they also would likewise not constitute takings, because the conditions themselves would substantially advance a legitimate state interest and not deny the owners all economic use of the property. In other words, the conditions would themselves satisfy the constitutional requirements to avoid being a taking without just compensation. In both cases, the Court held that the requisite nexus had not been established to avoid the Takings Clause, or as stated in my framework, the conditions themselves failed to satisfy the constitutional requirements necessary to avoid the Takings Clause.

The point here, however, is that Dolan's invocation of the unconstitutional conditions doctrine does not seem to presage any particular rebirth of that analysis. Rather, it is shorthand for the elementary concept that government cannot merely extort dedications of property by otherwise withholding development permits, a power the City of Tigard was certainly not advancing.

VII. AN EXTENSION OF NOLLAN?

There can be little question that Dolan carries Nollan a step further in the direction sought by property rights advocates. How much further? The Court's adoption of an "intermediate position" will remind some of the Court's compromise test for gender discrimination under the Equal Protection Clause. Rejecting Justice Brennan's preferred approach of strict scrutiny,(57) as well as Chief Justice Burger's rational relationship test,(58) the Court settled on a mid-level test, in which government must establish a substantial relationship between the gender classification and an important government interest.(59) In Dolan, no one dared argue in favor of Lochner, but the majority explicitly rejected both the equivalent of the strict scrutiny test, the so-called specific and uniquely attributable test,(60) and the equivalent of the rational basis test, because it was "too lax to adequately protect" a person's right to just compensation when that person's property is taken by government.(61) Instead the Court adopted an intermediate position, requiring municipalities to show a reasonable relationship between the condition and the proposed development.(62) However, given the possibility of confusion between a mid-level reasonable relationship requirement and the traditional rational basis requirement under the Equal Protection Clause, the Court adopted its new terminology--rough proportionality.(63)

There is too much extraneous cultural and social baggage involved in the Court's analysis of gender issues to suggest any particular doctrinal equivalence between the mid-level test applicable to gender classifications and the Court's new rough proportionality test, but the latter would seem to suffer from the same open-ended quality as the former. That is, with strict scrutiny, there is a presumption of unconstitutionality; with rational basis, there is a presumption of constitutionality; but with a midlevel test, there is no presumption. Therefore, a requirement that a classification have a substantial relationship, or that a land use condition be roughly proportional, seems to give little guidance to those who would try to predict future outcomes.

In the gender classification context, a shorthand has developed to mitigate that subjectivity. If the gender classification reflects an "old-fashioned stereotype" of male and female roles, the practical effect is to tilt the scales against the validity of the classification. If, however, the gender classification is aimed at addressing the effects of those past stereotypes, then the practical effect is to tip the scales in favor of the validity of the classification.(64) There are hints in Dolan that a similar form of a thumb-on-the-scales may be available.

In Dolan, Mrs. Dolan's story emphasizes the fact that the master plan provided for the greenway and the bike path long before she made her permit application. This fact suggests that there was no particular relation between the burdens imposed by Mrs. Dolan's proposed development and those pre-existing conditions placed in the master plan. In such a circumstance, a substantial relationship or rough proportionality test is a way of recognizing the improbability of any particular relationship. The converse, however, is that if the conditions are not preconceived, but are determined only in light of the particular development, then the thumb on the scales is in favor of rough proportionality, because it is probable that conditions imposed after contemplation of the proposed development will be responsive to that particular development.

I believe enforcement of the burden of proof on the city, seen in Dolan, is a further reflection of this thumb on the scales. Again, analogizing to the Equal Protection context, where government economic or social regulation raises no warning flags of invidious discrimination, the traditional rule has been that the person challenging the regulation has the burden of proving the negative--that there is no possible legitimate government interest or no conceivable relationship between a legitimate government interest and the regulation at issue.(65) But, where such regulations do raise certain warning flags, even if not sufficient to elevate the scrutiny formally to a higher level, the Court has opted to place the burden on the government seeking to uphold its regulation, rather than on the challenger.(66) Thus, in Dolan, where the warning flags are raised by the preconceived conditions on development, the burden is on the government to justify those conditions, to demonstrate the rough proportionality. In more routine land use cases, however, where the conditions are responsive to the particular development, the burden should remain on the person challenging the regulation.

Even when the burden of proof is on the government, as in Dolan, the rough proportionality test does not seem to impose insuperable obstacles to local government. The Court's discussion of the failures of Tigard's conditions suggests relatively easy hurdles. With respect to the greenway, the Court hypothesized that if Mrs. Dolan's development "had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public."(67) The Court's language, "somehow encroached," does not seem to suggest that the scrutiny of the nature of the encroachment should be particularly exacting.

The Court's discussion of the bike path even more strongly intimates that a court's review should not be severe. First, the Court accepts Tigard's estimation of the additional traffic likely to be generated by Mrs. Dolan's development.(68) The Court also accepts that "dedications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion."(69) The fault was that the city "had not met its burden of demonstrating" that the increased traffic from Mrs. Dolan's development "reasonably relate[d]" to the bike path.(70) What was that burden? "No precise mathematical calculation is required, but the city must make some effort to quantify its findings . . . beyond the conclusory statement that [the bike path] could offset some of the traffic demand generated."(71) In other words, had Tigard done some study (or relied upon some general national planning study) to estimate bikepath usage that would reduce automobile usage, and that study had shown some relationship to the estimated increase in traffic, that would have been enough. This is not a difficult undertaking.

VIII. IMPLEMENTING DOLAN

The above discussion suggests that a proper interpretation of Dolan's rough proportionality test should not cause major problems for local government, but it must be conceded that the test is somewhat open-ended. When the Supreme Court adopts a test with open-ended characteristics, which provides little real guidance for lower courts, the practical effect is to delegate to lower courts the ability to make the real value decisions. Which courts will those be?

It is not surprising that both Dolan and Nollan arose out of the state court systems. Both involved land use decisions, which are typically made by state and local governments, not by the federal government. The Supreme Court has developed a ripeness doctrine with respect to takings cases challenging state and local decisions that to a large degree keeps these cases out of federal courts. This doctrine provides that if a state provides a procedure to obtain just compensation for inverse condemnation, a person must utilize that procedure and be denied compensation before any federal constitutional claim is ripe.(72) This means that as a practical matter it will be state courts, rather than federal courts, that will be implementing Dolan. This in turn means that in the majority of states the state courts will be applying the same test they were already applying-after all, when it adopted the rough proportionality test, the Supreme Court said it was adopting the test used by a majority of the states.(73) Thus, in those states virtually nothing should have changed. Moreover, given the rather open-ended nature of the rough proportionality test, those state courts that had somewhat different tests may find it possible to adapt their practice to the new appellation with little change in outcomes. Given the practical inability of the Supreme Court to ride herd over the various states in their individual applications of the rough proportionality test, state court proclivities rather than the policies of the U.S. Supreme Court are likely to predominate. Dolan's impact on state court jurisprudence may be the equivalent of punching a pillow.

But what about federal conditions in permitting? They certainly exist. For example, permits to fill wetlands under section 404 of the Clean Water Act almost invariably contain conditions to mitigate the effects of the fill by recreating, restoring, or creating additional wetlands.(74) Federal takings claims almost always must be brought in the United States Court of Federal Claims in a suit for compensation, not in federal district courts to enjoin the federal activity. The theory is the same as is applicable to the states--it is not unconstitutional for federal regulation to go "too far" unless the federal government denies just compensation, and in almost every case just compensation is available for inverse condemnation through suit in the U.S. Court of Federal Claims, whose appeals go to the United States Court of Appeals for the Federal Circuit.(75) In recent years, however, these courts have developed a reputation for a distinctive Takings Clause jurisprudence, a jurisprudence that would not likely minimize the effect of Dolan if given a chance.(76)

Nevertheless, federal conditions on permits differ from those in Dolan. in the two ways identified by the Court with respect to ordinary land use regulation. That is, federal conditions rarely if ever require dedication of land to the government or third parties, and federal conditions are virtually all tailored to the particular permit application involved. Except on federal land, there is no federal equivalent of the Tigard master plan. Accordingly, it seems unlikely that even the Court of Federal Claims and the Federal Circuit would find Dolan applicable to federal permitting actions.

IX. CONCLUSION

The thrust of my analysis has been to minimize the effect of Dolan. This is not just wishful thinking; it is the clear tenor of the decision itself. The terms of the decision distinguish the conditions in Dolan from ordinary land use regulation, both by reason of the dedications of property and the preconceived conditions before any development was planned. Even when the Dolan decision is applicable, the Court's rough proportionality test, both by its terms and as suggested by the Court's analysis of Tigard's conditions, is not particularly demanding.(77) And finally, Dolan will be mediated through state courts that are likely to make minimal changes to existing practices and understandings.

This having been said, however, there is no denying two important elements of Dolan. First, and most substantively, Dolan no doubt says something fundamental about master plans that involve planned dedications of property as a condition of development. That something fundamental is a basic skepticism about the ability of master plans to assess the particular situations that arise in the future.(78) It might have been argued that Tigard's condition on Mrs. Dolan's permit, even though it was in the master plan well before Mrs. Dolan even thought about expanding her store, was based on an accurate prediction of how Mrs. Dolan's property would be developed. After all, the area was in the central business district, which allowed for up to eighty-five percent of the land to be developed. Prime commercial property could be expected to develop up to its limit, and if it was, the impacts of that projected development could well be assessed in the master plan. But the Court did not read the master plan that way; instead, it read the master plan as representing "[t]he city's goals" or reflecting "[a] strong public desire to improve the public condition."(79) The Court inferred from this that the city was making Mrs. Dolan "bear public burdens which, in all fairness and justice, should be borne by the public as a whole."(80) The Court's insistence on "some sort of individualized determination"(81) reflects the Court's skepticism of the planning process as an adequate means of assessing individual impacts.

The second important element of Dolan can be illustrated by a list: Dolan, Lucas,(82) Nollan, and First English Evangelical;(83) property owners have won the last four decisions by the Supreme Court involving alleged regulatory takings of real property.(84) Those who argue that these cases individually do not have great impact(85) nevertheless must have the sense that they are whistling past the graveyard. To mix metaphors, not only has the second shoe dropped, but also the third and fourth. Some of the cases now bubbling up to the Federal Circuit seem likely to make it to the Supreme Court and may test Justice Souter's statement that "[t]he right case for the enunciation of takings doctrine seems hard to spot."(86)

(1) 114 S. Ct. 2309 (1994). (2) Id. at Z320. (3) Id. at 2313. (4) Id. at 2321. (5) Id. at 2313. (6) 483 U.S. 825 (1987). (7) The state's public interest in Nollan was to preserve the public's view of the beach despite the development of beach property. Unlike an easement across a beachfront property owner's property from the street to the beach, the Court found that an easement along the beach itself was simply not responsive to--did not "substantially advance"--that interest. Id. at 841. (8) Id. at 837. (9) Id. (10) See id. at 834 (quoting Agins v. Tiburon, 447 U.S. 255, 260 (1980)), 841. (11) See, e.g., Robert A. Williams, Jr., Legal Discourse, Social Vision and the Supreme Court's Land Use Planning Law: the Genealogy of the Lochnerian Recurrence in First English Lutheran Church and Nollan, 59 U. Corp. L. Rev. 427 (1988). (12) See, e.g., Dolan v. City of Tigard, 854 P.2d 437 (Or. 1993). (13) Dolan, 114 S. Ct. at 2317-18. (14) Chief Justice Rehnquist delivered the opinion of the Court, in which Justices O'Connor, Scalia, Kennedy, and Thomas joined. Justice Stevens filed a dissenting opinion, in which Justices Blackmun and Ginsburg joined. Justice Souter filed a dissenting opinion. (15) Dolan, 114 S. Ct. at 2322. (16) Id. at 2317-18. (17) Id. at 2318. (18) Id. (19) Id. at 2317. (20) See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). (21) E.g., Williamson v. Lee Optical Co., 348 U.S. 483, 487-88, 489-91 (1955). (22) See id. (implied by the Court's willingness to construct rationales for the state). (23) Dolan, 114 S. Ct. at 2319 (quoting Pioneer Trust & Sav. Bank v. Village of Mount Prospect, 176 N.E.2d 799, 802 (Ill. 1961)). (24) Id. at 2318. (25) Id. at 2319. In the states, this intermediate position is apparently known as the "reasonable relationship" test, but the Court, while accepting the test, rejected its appellation, because it "seems confusingly similar to the term ,rational basis, which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment." Id. (26) Id. (quoting Simpson v. City of Platte, 292 N.W.2d 297, 301 (Neb. 1980)). (27) Id. at 2319-20. (28) Id. at 2320. (29) Id. at 2321-22 (quoting unidentified City of Tigard document and Dolan v. City of Tigard, 854 P.2d 437, 447 (Or. 1993) (Peterson, J., dissenting)) (footnote omitted). (30) Id. at 2322-30 (Stevens, J., dissenting). (31) Id. at 2329-30 (Stevens, J., dissenting). (32) Id. at 2330 (Souter, J., dissenting). (33) Id. at 2331 (Souter, J., dissenting). (34) See id. at 2322 (Stevens, J., dissenting), 2330 (Souter, J., dissenting). (35) Id. at 2327 (Stevens, J., dissenting). (36) Id. (37) Lochner v. New York, 198 U.S. 45, 75-76 (1905) (Holmes, J., dissenting). (38) United States v. Carlton, 114 S. Ct. 2018, 2026 (1994) (Scalia, J., dissenting). (39) Dolan, 114 S. Ct. at 2320. (40) John D. Johnston, Jr., Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell L.Q. 871, 923 (1967). (41) Dolan, 114 S. Ct. at 2325 (Stevens, J., dissenting). (42) Id. at 2316. (43) Id. (44) Id. (45) In theory, one may argue that if a land use classification is broad enough, the need for judicial oversight through stricter scrutiny may be less necessary, because the larger number of people affected can protect themselves through the legislative process. (46) Cf. Director, Office of Workers, Compensation Programs v. Greenwich Collieries, 114 S. Ct. 2251 (1994). (47) Dolan, 114 S. Ct. at 2316. (48) United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). (49) Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987). This analogy seems less than perfect, because while people do not have much incentive to shout "Fire!" in a crowded theater, property owners have substantial incentive to develop their property. Probably the same point can be made as well by hypothesizing that instead of having to grant public access to the beach front, the property owner could obtain a building permit merely by donating $1000 to the state Republican or Democratic party. (50) Id. (quoting J.E.D. Assocs., Inc. v. Atkinson, 432 A.2d 12, 14-15 (1981)). (51) Dolan 114 S. Ct. at 2317. (52) Id. at 2328. (53( Id. at 2317. (54) Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). (55) Indeed, this mode of analysis is consistent with at least one thread of the unconstitutional conditions doctrine. For example, Nowak and Rotunda summarize the unconstitutional conditions doctrine as follows:

Courts must in each instance examine the substance of the condition to determine whether it violates constitutional principles. For example, it would be permissible for the federal government to condition a grant to a farmer on a requirement that the farmer not plant more than a specific acreage of a commodity because, under its commerce power, Congress could directly limit agricultural production. However, if the federal government were to condition an agricultural grant on a farmer's promise not to criticize government farm policy, the condition would be invalid. John E. Nowak & Ronald D. Rotunda, Constitutional Law 955 (4th ed. 1991) (footnotes omitted). (56) See Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987); Dolan, 114 S. Ct. at 2316 n.6. (57) See Frontiero v. Richardson, 411 U.S. 677, 689 (1973) (plurality decision). (58) See Reed v. Reed, 404 U.S. 71, 76 (1971). (59) Craig v. Boren, 429 U.S. 190, 197 (1976). (60) Dolan, 114 S. Ct. at 2319. (61) Id. (62) Id. (63) Id. (64) Compare Califano v. Webster, 430 U.S. 313, 317-18 (1977) (discriminatory legislation in favor of women not based on old stereotypes but designed to compensate for past mistreatment is constitutional) with Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 728-30 (1982) (discriminatory admissions policy banning males from nursing school perpetuated stereotypes and is unconstitutional). (65) See Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 71-72 (1911) (presumption of validity); Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (burden on challenger implied throughout in the Court's willingness to construct rationales for the State). (66) See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47, 450 (1985) (discrimination against mentally retarded persons cannot rest on an irrational prejudice); Plyler v. Doe, 457 U.S. 202, 216-20, 226 (1982) (Court used mid-level scrutiny to find discrimination against illegal alien children unconstitutional despite State's arguments for differentiation); Reed v. Reed, 404 U.S. 71, 75-77 (1971) (in case of discrimination against women, the Court overruled state supreme court's determination of logical and non-arbitrary basis). (67) Dolan, 114 S. Ct. at 2321. (68) The city applied a formula widely used by city planners for estimating vehicle trips generated by square feet of retail commercial space. Id. at 2321 n.9. This formula was applied to Mrs. Dolan's particular development plans; the city's estimated increase in traffic was, therefore, developed in light of the specific facts, not as part of the master plan. (69) Id. at 2321. (70) Id. (71) Id. at 2322 (emphasis added). (72) E.g., Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186-87 (1986) (citing a series of Supreme Court decisions). (73) Dolan, 114 S. Ct. at 2319. (74) See 33 C.F.R. [sections] 325.4(a)(1) (1994) (requiring district engineers to impose conditions on permits to satisfy legal requirements, such as EPA's ocean dumping criteria, Endangered Species Act provisions, and state water quality certifications). (75) See, e.g., Preseault v. ICC, 494 U.S. 8, 12-13, 17 (1990) (Tucker Act remedy for takings exists, so plaintiff's failure to use it renders takings claim premature). (76) See Michael C. Blumm, The End or Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 Envtl. L. 171 (1995). (77) Dolan, 114 S. Ct. at 2321. (78) See, e.g., id. at 2329 (Stevens, J., dissenting) (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926)). (79) Id. at 2322 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922)). (80) Armstrong v. United States, 364 U.S. 40, 49 (1960), cited in Dolan, 114 S. Ct. at 2316. (81) Dolan, 114 S. Ct. at 2319. (82) Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2901-02 (1992) (although landowner's damages were reversed, State had heavy burden on remand to prove no taking). (83) First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 305 (1987) (landowner can recover damages for land "taken" by a land use regulation, even if the taking is temporary). (84) In Yee v. Escondido, 112 S. Ct. 1522 (1992), the Court held against a mobile home park owner on a claim of physical invasion but did not rule on this regulatory taking claim, saying it was not properly before the Court. (85) Cf. William Funk, Revolution or Restatement? Awaiting Answers to Lucas, Unanswered Questions, 23 Envtl. L. 891 (1993). (86) Dolan, 114 S. Ct. at 2331 (Souter, J., dissenting).

William Funk (*) Professor of Law, Northwestern School of Law of Lewis and Clark College, J.D. 1973, Columbia University; B.A. 1967, Harvard University.