Takings on the Ground: How the Supreme Court's Takings Jurisprudence Affects Local Land Use Decisions

Abstract

In this Article, we present extensive empirical evidence about the experience California planners have had responding to U.S. Supreme Court takings decisions handed down over the past decade and a half. Based on a survey of all California cities and counties and six in-depth case studies, we reached some surprising and counterintuitive conclusions. Most notably, we found that some types of communities - growth areas with large amounts of developable land - have used the decisions to reassess their policies of imposing exactions for land or fees on developers in exchange for development permission and, as a result, are now levying higher impact fees on developers. We also found that the requirements of Nollan and Dolan seem to have nudged developing communities into more systematic, comprehensive planning through the preparation of reports and studies documenting the rationale for exacting money and land from developers. Perhaps surprisingly, a large majority of California planners view the Supreme Court decisions as establishing "good planning practices." We also found, however, that the Court decisions more negatively constrain the land use practices of highly built out communities with little available vacant land. As a result of the decisions, such communities may lose the ability to exact land or higher fees from developers in order to pay for unfunded infrastructure needs. This distinction between developing communities and older urban areas, if widespread and persistent, may exacerbate pre-existing divisions over traffic woes, substandard school conditions, the provision of affordable housing and other pressing local government concerns.

JEL Classification: H70, H73, K30, K32