Cite as: 512 U. S. 374 (1994)
Souter, J., dissenting
Second, as to the bicycle path, the Court again acknowledges the "theor[etically]" reasonable relationship between "the city's attempt to reduce traffic congestion by providing [a bicycle path] for alternative means of transportation," ante, at 387, and the "correct" finding of the city that "the larger retail sales facility proposed by petitioner will increase traffic on the streets of the Central Business District," ante, at 395. The Court only faults the city for saying that the bicycle path "could" rather than "would" offset the increased traffic from the store, ante, at 396. That again, as far as I can tell, is an application of Nollan, for the Court holds that the stated connection ("could offset") between traffic congestion and bicycle paths is too tenuous; only if the bicycle path "would" offset the increased traffic by some amount could the bicycle path be said to be related to the city's legitimate interest in reducing traffic congestion.
I cannot agree that the application of Nollan is a sound one here, since it appears that the Court has placed the burden of producing evidence of relationship on the city, despite the usual rule in cases involving the police power that the government is presumed to have acted constitutionally.* Having thus assigned the burden, the Court concludes that the city loses based on one word ("could" instead of "would"), and despite the fact that this record shows the connection the Court looks for. Dolan has put forward no evidence that
*See, e. g., Goldblatt v. Hempstead, 369 U. S. 590, 594-596 (1962); United States v. Sperry Corp., 493 U. S. 52, 60 (1989). The majority characterizes this case as involving an "adjudicative decision" to impose permit conditions, ante, at 391, n. 8, but the permit conditions were imposed pursuant to Tigard's Community Development Code. See, e. g., § 18.84.040, App. to Brief for Respondent B-26. The adjudication here was of Dolan's requested variance from the permit conditions otherwise required to be imposed by the Code. This case raises no question about discriminatory, or "reverse spot," zoning, which "singles out a particular parcel for different, less favorable treatment than the neighboring ones." Penn Central Transp. Co. v. New York City, 438 U. S. 104, 132 (1978).
413
Page: Index Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 NextLast modified: October 4, 2007