Proposed Exactions

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.

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