Exactions for the Future

58 Pages Posted: 4 Jun 2012  

Timothy M. Mulvaney

Texas A&M University School of Law

Date Written: June 4, 2012

Abstract

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. Yet it is not clear these practical impediments are sufficient to warrant the near categorical prohibition on such exactions that is imposed by current Takings Clause jurisprudence. After analyzing the features of takings law that constrict the use of such an exactions scheme, this article offers an alternative approach to exaction imposition involving temporal segmentation of the government’s sought-after interest, which could provide a public tool to address anticipated future harms while offering at least some protection against takings claims.

Keywords: exactions, takings, due process, land use, planning

Suggested Citation

Mulvaney, Timothy M., Exactions for the Future (June 4, 2012). Baylor Law Review, Vol. 64, No. 2, p. 101, 2012. Available at SSRN: https://ssrn.com/abstract=2076274

Timothy M. Mulvaney (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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