NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 13 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KOGAP ENTERPRISES, INC, an Oregon No. 24-5268 Corporation, D.C. No. 1:22-cv-01468-CL Plaintiff - Appellant,

MEMORANDUM*

v.

CITY OF MEDFORD,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Mark D. Clarke, Magistrate Judge, Presiding**

Argued and Submitted October 23, 2025 Portland, Oregon

Before: W. FLETCHER, CHRISTEN, and HURWITZ, Circuit Judges.

KOGAP Enterprises, Inc., appeals a summary judgment in favor of the City

of Medford. Because the parties are familiar with the facts, procedural history, and

arguments in the instant dispute, we do not recount them here. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to jurisdiction by a Magistrate Judge. Fed. R. Civ. P. 73(a). Appeals may be taken directly to the court of appeals. 28 U.S.C. § 636(c)(3). jurisdiction pursuant to 28 U.S.C. § 1291. We conclude that the City established

the requisite nexus between KOGAP’s proposed development project and the

imposition of a permit condition requiring KOGAP to extend Myers Lane to Anton

Drive. But we also conclude that the City failed to meet its burden to establish that

the condition was roughly proportional to the impact of KOGAP’s project.

Accordingly, we reverse the district court’s order granting summary judgment to

the City and direct entry of summary judgment for KOGAP on remand.

We review orders granting summary judgment de novo. Guggenheim v. City

of Goleta, 638 F.3d 1111, 1116 (9th Cir. 2010). Summary judgment is warranted

when “there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Governments are entitled to use their powers to regulate land use and

permitting within the constraints of the Takings Clause of the Fifth Amendment.

See Dolan v. City of Tigard, 512 U.S. 374, 384–85 (1994). The government must

meet two requirements to lawfully impose a condition burdening property rights,

known as an “exaction,” on a development permit. First, it must show the exaction

has an “essential nexus” to a “legitimate state interest.” Id. at 386 (quoting Nollan

v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987)). Second, the government must

make an individualized determination that the nature and extent of the exaction is

2 24-5268 roughly proportional to the impact of the proposed development. Id. at 391. “No

precise mathematical calculation is required, but the city must make some effort to

quantify its findings” in support of the condition beyond a “conclusory statement

that it could offset some of the traffic demand generated.” Id. at 395–96.

We conclude the district court did not err in finding that the City had met its

burden to demonstrate an essential nexus. However, the record does not contain a

basis upon which the district court could have held that the City demonstrated

rough proportionality between the project’s expected impacts and the exaction

imposed.

The City sought to justify the Myers Lane extension based upon traffic

concentration in the southeast section of the development resulting from “more

auto-oriented uses.” But the City failed to provide evidence at the summary

judgment stage that it had measured the alleged traffic distribution impacts of the

new proposal. Because it failed to provide evidence to enable a “rough

proportionality” analysis, we conclude that the City failed to carry its burden to

establish this second prong of the exaction analysis.

We reverse the district court’s orders granting summary judgment to the City

and direct entry of summary judgment for KOGAP on remand.

REVERSED.

3 24-5268