Planned Unit Development and Takings Post Dolan
Forrest, Clyde W.
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Growing tensions between government efforts to require private property use or development in ways that promote the health, safety, and general quality of life within our communities are exacerbated by the so-called "Takings" cases. In Dolan v. City of Tigard, the United States Supreme Court declared a local condition of approval of a development permit to be insufficiently supported by the findings of the city. This article discusses how this decision seriously undermines the traditional presumption of validity of local Planned Unit development permit decisions and imposes a level of proof about such conditions which may result in denials of good development proposals with solvable problems. Flexibility by local governments in permitting valuable development while mitigating health and safety problems through specific conditions must meet a "rough proportionality" test that many small jurisdictions will be hard pressed to establish. Mutual realization by local government and developers of the downside of the "takings" decisions will lead to improved use Planned Unit Development amid other flexibility tools ii local zoning and land use control.