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Failed Exactions

Mark Fenster

University of Florida - Levin College of Law

January 11, 2012

Vermont Law Review, Vol. 36, No. 3, 2012, pp. 623-647

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand made of a land owner by a government agency for land or money as a condition on development could and perhaps should trigger rigorous judicial review.

Both before and after Justice Scalia’s ruminations, which only Justices Kennedy and Thomas joined, courts have struggled with this question. As the litigation that ended with the Florida Supreme Court decision in Koontz v. St. Johns Water Management District (2011) reveals, judicial efforts to put the unruly peg of an unenforced condition into the narrowly defined categories of regulatory takings creates an excess of confusion. The essay identifies the doctrinal, remedial, procedural, and consequential dangers of any effort to apply heightened federal constitutional scrutiny to failed exactions.

Number of Pages in PDF File: 25

Keywords: regulatory takings, exactions, property, land use

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Date posted: January 12, 2012 ; Last revised: September 15, 2015

Suggested Citation

Fenster, Mark, Failed Exactions (January 11, 2012). Vermont Law Review, Vol. 36, No. 3, 2012, pp. 623-647. Available at SSRN: http://ssrn.com/abstract=1983632

Contact Information

Mark Fenster (Contact Author)
University of Florida - Levin College of Law ( email )
P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0962 (Phone)
352-392-3005 (Fax)

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