Dolan v. City of Tigard

877 P.2d 1201 (1994)

319 Or. 567

John T. DOLAN and Florence Dolan, Petitioners on Review, v. CITY OF TIGARD, Respondent on Review.

LUBA 91-161; CA A73769; SC S39393; USSC 93-518.

Supreme Court of Oregon, In Banc.

Received and Submitted July 29, 1994.

Decided August 11, 1994.

David B. Smith, Tigard, for petitioners on review.

James M. Coleman, O'Donnell, Ramis, Crew & Corrigan, Portland, for respondent on review.

Daniel J. Popeo and Paul D. Kamenar, Washington, DC, and Gregory S. Hathaway, Garvey, Schubert & Barer, Portland, for amicus curiae Washington Legal Foundation.

Timothy J. Sercombe and Edward J. Sullivan, Preston, Thorgrimson, Shidler, Gates, & Ellis, Portland, for amicus curiae 1000 Friends of Oregon.

Ronald A. Zumbrun and Robin L. Rivett, Sacramento, CA, and Richard M. Stephens, Bellevue, WA, for amicus curiae Pacific Legal Foundation.

PER CURIAM.

This case is before us on remand from the Supreme Court of the United States. Dolan v. City of Tigard, ___ U.S. ___, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).

On review, this court upheld the City of Tigard's dedication requirements that had been imposed as a condition of approval of Dolan's application to construct a larger store on her property, holding that the conditions did not amount to an unconstitutional taking of Dolan's property in violation of the Fifth Amendment to the Constitution of the United States. Dolan v. City of Tigard, 317 Or. 110, 854 P.2d 437 (1993), affirming 113 Or.App. 162, 832 P.2d 853 (1992).

On certiorari, the Supreme Court of the United States reversed, holding that the City of Tigard's findings supporting the conditions did not meet the constitutional requirement of demonstrating "rough proportionality" between those conditions and the nature and extent of the impact of the proposed development. ___ U.S. at ___, 114 S. Ct. at 2322. The Court remanded the case for further proceedings consistent with its opinion. Ibid.

The decision of the Court of Appeals and the order of the Land Use Board of Appeals are reversed. The case is remanded to the City of Tigard for further proceedings.