The State of Exactions

54 Pages Posted: 24 Aug 2019 Last revised: 15 Oct 2019

Date Written: August 23, 2019

Abstract

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent to which those predictions have come to pass via a review of the approximately 130 lower court cases to have cited Koontz to date. Based on this review, the Article offers two claims. First, on doctrinal grounds, it contends that Koontz’s footprint is rather light to date, in the sense that the decision has not prompted lower courts to extend the application of heighted scrutiny to a broad class of regulatory measures and, in those select instances where such scrutiny does apply, has not led lower courts to craft a far-reaching array of remedies. Second, on normative grounds, it asserts that the restraint evident in the lower court opinions that have wrestled with Koontz thus far is appealing in the sense that this course acknowledges that property necessarily involves context-driven allocative choices by the state, and focuses — as best these courts can, given the constraints explicit in prior doctrine — on whether those allocative choices are fair and just absent compensation.

Keywords: property, land use, takings, exactions, regulatory takings, exaction takings, koontz, nollan, dolan, legislative exactions, monetary exactions, permit conditions

Suggested Citation

Mulvaney, Timothy M., The State of Exactions (August 23, 2019). William & Mary Law Review, Forthcoming; Texas A&M University School of Law Legal Studies Research Paper No. 19-39. Available at SSRN: https://ssrn.com/abstract=3442026 or http://dx.doi.org/10.2139/ssrn.3442026

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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