Development Exactions: Avoiding and Defeating Dolan Challenges

Abstract

Municipal efforts to acquire urban infrastructure for development have never been more complicated. A decade of economic boom has included unprecedented urban growth, high demands for urban infrastructure, strained public coffers, and a necessary resort to regulatory tools to meet the demands. Exacerbating the situation is the 1994 United States Supreme Court case limiting the development exactions practices of local governments.¹ In Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), 46 ZD 232, the Court ruled that the Fifth Amendment's Taking Clause is violated unless a land exaction as a condition of development approval is “roughly proportional” to the nature and extent of the impacts of the proposed development. The Court said: “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.” Id. at 2319.