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Exactions Creep

Lee Anne Fennell

University of Chicago Law School

Eduardo M. Penalver

Cornell University - Law School

December 6, 2013

Supreme Court Review, Forthcoming
University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 665
U of Chicago, Public Law Working Paper No. 448
Kreisman Working Paper on Housing Law and Policy No. 1

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

Number of Pages in PDF File: 63

Keywords: exactions, regulatory takings, unconstitutional conditions

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Date posted: October 26, 2013 ; Last revised: December 14, 2014

Suggested Citation

Fennell, Lee Anne and Penalver, Eduardo M., Exactions Creep (December 6, 2013). Supreme Court Review, Forthcoming; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 665; U of Chicago, Public Law Working Paper No. 448; Kreisman Working Paper on Housing Law and Policy No. 1. Available at SSRN: http://ssrn.com/abstract=2345028

Contact Information

Lee Anne Fennell (Contact Author)
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0603 (Phone)
Eduardo Moises Penalver
Cornell University - Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
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