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Nov. 6 Property: Development Dedications

Today we started on exactions or dedications. They go something like this: say a developer wants to put in 1,000 homes. The city may come back and say, “Okay, we’ll grant the permit if you donate 10 acres for x.” That’s a dedication. The city can’t do this discriminately, however. In Dolan v. Tigard, the Supreme Court said that the city has to show a logical nexus between the dedication and the development and rough proportionality between the required dedication and the impact of the proposed development. Let’s look at our example above. If the city wanted a zoo, there wouldn’t be a logical nexus because it’s hard to see how 1,000 homes and a zoo relate. Further, there isn’t rough proportionality either for the same reason. If the city were to say they wanted 10 acres for a school, however, the story would be different. 1,000 homes and a school are related. The logical nexus is in the children that will move into the area and with so many new kids, there’s almost certainly a need for a new school. 

In Dolan, the city said that the plaintiff could expand her store and pave her parking lot if she kept the floodplain behind the store open and dedicated a bike path. The kicker was that the city already had an ordinance that 15% of the property had to be kept as open space (the floodplain would have been 10%), and the city wanted title to the property. The court didn’t go for that because 1) it would be a taking, and 2) the court didn’t see how making the property available for recreation was connected to its purposes of preventing flooding. 

So there you have it kids. The city can require dedications, but they have to be related to the development.

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November 6, 2006 - Posted by | Property

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