Abstract

http://ssrn.com/abstract=1837809
 


 



Proposed Exactions


Timothy M. Mulvaney


Texas A&M University - School of Law

May 10, 2011

Journal of Land Use & Environmental Law, Vol. 26, No. 2, 2011

Abstract:     
In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.

Number of Pages in PDF File: 35

Keywords: Takings, Exaction, Property, Fifth Amendment, Nollan, Dolan, Koontz, Lambert, Permit Condition

Accepted Paper Series





Download This Paper

Date posted: May 12, 2011  

Suggested Citation

Mulvaney, Timothy M., Proposed Exactions (May 10, 2011). Journal of Land Use & Environmental Law, Vol. 26, No. 2, 2011. Available at SSRN: http://ssrn.com/abstract=1837809

Contact Information

Timothy M. Mulvaney (Contact Author)
Texas A&M University (TAMU) - School of Law ( email )
1515 Commerce St.
Fort Worth, TX 76102
United States
Feedback to SSRN


Paper statistics
Abstract Views: 646
Downloads: 125
Download Rank: 135,191

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.281 seconds