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Justices Limit Government’s Power to Take Private Property

June 24, 1994

WASHINGTON (AP) _ The Supreme Court today limited government’s power to require private property owners to set aside part of their land for public environmental purposes.

Ruling 5-4 in an Oregon case, the court said a city cannot force a store owner to make part of her land a public bike path in exchange for a permit to build a larger store.

The city of Tigard, Ore., must find other ways to address the increased traffic and storm water runoff that a larger store could create, the court said.

″The city’s goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done,″ Chief Justice William H. Rehnquist wrote for the court.

″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,″ Rehnquist wrote.

Writing in dissent, Justice John Paul Stevens said that when there is doubt about how urban development might affect the risk of traffic congestion or environmental problems, ″the public interest in averting them must outweigh the private interest of the commercial entrepreneur.″

Stevens, whose dissent was joined by two other justices, said the majority ″has stumbled badly″ in its opinion.

Today’s ruling reversed an Oregon Supreme Court ruling that allowed Tigard city planners to set a public-use requirement before they would let Florence Dolan build a larger plumbing-supply store.

The Constitution’s Fifth Amendment bars government from taking private land without fair compensation. The Supreme Court has previously ruled that government can regulate private land use without payment to the owner as long as the regulation does not deny all economically viable use of the land.

Dolan owns A-Boy Plumbing on Main Street in Tigard, a suburb of Portland. City officials said she could tear down the store and build a much larger one only if she turned over about 10 percent of her 1.67-acre lot to be used as public space.

City officials said part of the space must be made open public land alongside a creek, while the rest would be used for rebuilding a storm drainage channel and for a pedestrian and bicycle path to a nearby park.

Dolan’s attorneys acknowledged city officials simply could have refused to let her build a larger store. But they added officials never determined how much more storm-water runoff a larger store would create.

Dolan could not be singled out to bear the burden of completing the city’s plans for paths and storm drains, her attorneys said.

The city’s lawyers said Dolan and her family could have found other ways to address officials’ concerns. Other property owners are required to make environmental concessions such as building storm-water storage facilities, the city’s lawyers said.

But the Supreme Court said the city’s requirements went too far. The Constitution requires a ″rough proportionality″ between a land-use requirement and the impact of proposed development, Rehnquist wrote.

Calling such a requirement a ″business regulation″ does not mean it is immune from a claim that it violates the Constitution, Rehnquist wrote.

″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,″ Rehnquist wrote.

His opinion was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Joining Stevens’ dissent were Justices Harry A. Blackmun and Ruth Bader Ginsburg. Justice David H. Souter wrote a separate dissent.

The case is Dolan vs. Tigard, 93-518.

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